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Federal Court of Australia |
Last Updated: 15 February 1999
Tydeman v Deputy Registrar of Child Support Agency
Administrative Decisions (Judicial Review) Act 1977 (Cth) - s 6(1), Sch 1(s)
Child Support (Assessment) Act 1989 (Cth) - Pt 6A
Minister for Immigration and Multicultural Affairs v Ozmanian (1996) 71 FCR 1, considered
CATHERINE ALEXIS TYDEMAN v
DEPUTY REGISTRAR OF CHILD SUPPORT AGENCY
NG 942 of 1998
KATZ J
12 FEBRUARY 1999
SYDNEY IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY NG 942 OF 1998
BETWEEN: Applicant AND: Respondent JUDGE:
CATHERINE ALEXIS TYDEMAN
DEPUTY REGISTRAR OF CHILD SUPPORT AGENCY
KATZ J DATE OF ORDER: 12 FEBRUARY 1999 WHERE MADE: SYDNEY
THE COURT ORDERS THAT:
1. The application be dismissed as incompetent.
2. The applicant pay the respondent's costs of the proceeding.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
|
IN THE FEDERAL COURT OF AUSTRALIA | |
| NEW SOUTH WALES DISTRICT REGISTRY | NG 942 of 1998 |
BETWEEN: Applicant AND: Respondent
CATHERINE ALEXIS TYDEMAN
DEPUTY REGISTRAR OF CHILD SUPPORT AGENCY
JUDGE:
KATZ J DATE: 12 FEBRUARY 1999 PLACE: SYDNEY
2 (I should, I consider, record here that Ms Tydeman's amended application sought only to invoke the jurisdiction which is explicitly conferred upon this Court by s 8 of the JRA to hear and determine applications made to it under the JRA. Her amended application did not seek to invoke the jurisdiction conferred upon this Court by subs 39B(1) of the Judiciary Act 1903 (Cth) with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against (relevantly) an officer of the Commonwealth. In written submissions filed and served before the hearing of the motion to which I will refer below, the respondent (rather incautiously, as I thought) drew attention to that omission from Ms Tydeman's amended application and then made submissions as to what the Court should have done if the amended application had invoked its jurisdiction under subs 39B(1). Those written submissions did not, however, provoke any attempt by Ms Tydeman to invoke at the hearing of the motion, whether formally or informally, the Court's subs 39B(1) jurisdiction. Accordingly, I need not trouble myself to deal in these reasons with the respondent's hypothetical submissions as to what the Court should do in those circumstances.)
3 Ms Tydeman's amended application named as respondent thereto the "Deputy Registrar of the Child Support Agency". That was a mistake in the respondent's name in a number of ways. If the amended application was not to name as respondent thereto the individual officer who had engaged in the conduct the lawfulness of which was challenged in the amended application, then the respondent named should have been the Child Support Registrar ("the Registrar"), whose delegate the individual officer had been at the relevant time.
4 The Registrar is an officer whose office was established by subs 10(1) of the Child Support (Registration and Collection) Act 1988 (Cth).
5 It was the Registrar who appeared before me. When doing so, the Registrar took no point about the mistake in the respondent's name in the amended application. Instead, the Registrar suggested that it was appropriate that I treat the amended application as though made against the Registrar and I do so accordingly.
6 There is presently before me a motion by the Registrar to have Ms Tydeman's amended application under the JRA for an order of review dismissed as incompetent.
7 The factual setting in which Ms Tydeman's amended application was made and in which dismissal of such amended application as incompetent is sought by the Registrar is relevantly as follows: administrative assessments being in force under the Child Support (Assessment) Act 1989 (Cth) ("the Assessment Act") in relation to two children of Ms Tydeman's, Mr Brian Arthur Tydeman, the father of the two children and the liable parent concerned within the meaning of the Assessment Act, sought, under Pt 6A of the Assessment Act, a determination having the effect that the provisions of the Assessment Act relating to administrative assessment of child support would be departed from in relation to those children. Such application was made at about the end of August 1992. On 21 January 1993, a delegate of the Registrar engaged in certain conduct for the purpose of deciding whether to make a determination under Pt 6A of the Assessment Act. (It is that conduct of which Ms Tydeman's amended application under the JRA sought review, as she assured me during the hearing of the Registrar's motion.) On 27 January 1993, the delegate purported to make a determination having the effect that the provisions of the Assessment Act relating to administrative assessment of child support would be departed from in certain respects in relation to those children. On 3 February 1993, a copy of the delegate's purported determination, including the reasons for making the purported determination, was sent to Ms Tydeman.
8 The first step in the Registrar's argument for dismissal of Ms Tydeman's amended application under the JRA as incompetent was to
refer to par (s) of Sch 1 of the ADJR
Act. That paragraph provides that determinations by the Registrar under Pt 6A of the Assessment Act are a class of decisions that are not decisions to which the JRA applies.
9 That paragraph was inserted into the JRA by s 4 of the Child Support Legislation Amendment Act (No. 2) 1992 (Cth). Section 4 commenced on 11 December 1992, pursuant to subs 2(1) of that amending Act. Thus, not only the purported determination under Pt 6A of the Assessment Act, but also the conduct complained of in Ms Tydeman's amended application, which conduct was engaged in for the purpose of making the purported determination, occurred after the commencement of par (s) of Sch 1 of the JRA. There is therefore no question in the present proceeding of Ms Tydeman's having had, at the time of the commencement of par (s) of Sch 1 of the JRA, some accrued right to seek review under the JRA of the conduct the lawfulness of which she now challenges.
10 The second step in the Registrar's argument was to refer to the chapeau of subs 6(1) of the JRA. I have already set out the substance of that chapeau in par 1 of these reasons, but repeat now that subs 6(1)'s applicability depends upon a person's having engaged in conduct for the purpose of making a decision to which the JRA applies. The Registrar's argument was that, because determinations made by the Registrar under Pt 6A of the Assessment Act are a class of decision that are not decisions to which the JRA applies, it followed that conduct engaged in for the purpose of making such a determination did not fall within subs 6(1).
11 Ms Tydeman's response to the Registrar's argument began by pointing out that par (s) of Sch 1 of the JRA was unique among the paragraphs of that Schedule. It is (and, at the relevant time, was) the only paragraph identifying as a class of decisions that are not decisions to which the JRA applies, things which are called "determinations", rather than "decisions". It therefore followed, it was argued, that if the conduct the lawfulness of which was being challenged by Ms Tydeman could be seen to have been engaged in by the Registrar's delegate for the purpose of making something which was, not a "determination" under Pt 6A of the Assessment Act, but nevertheless a decision under that Part, then par (s) of Sch 1 of the JRA would be of no present relevance. Furthermore, the conduct complained of would be reviewable under subs 6(1) of the JRA, because it had been engaged in for the purpose of making a decision which was "a decision to which this Act applies" (to quote directly from the chapeau of subs 6(1) of the JRA).
12 So far as the second part of Ms Tydeman's argument is concerned, I have no difficulty in accepting it. Ignoring for the moment the existence of par (s) of Sch 1 of the JRA, it seems to me inevitable that those things which the Registrar makes under Pt 6A of the Assessment Act would be decisions to which the JRA applies. Such a conclusion is confirmed by the very enactment of par (s) of Sch 1 of the JRA. Of course, it is possible that the legislature committed an act of supererogation by enacting par (s) of Sch 1 of the JRA, but I would prefer to treat its act of enacting the provision as both necessary in order to exclude decisions made under Pt 6A of the Assessment Act from the reach of the JRA and effective to do so.
13 So far as the first part of Ms Tydeman's argument is concerned, I follow the logic of it. However, without quoting in these reasons Pt 6A of the Assessment Act as it was at the relevant time, it is sufficient to say that, on my reading of it, the class of things made by the Registrar which are decisions under it, but not at the same time "determinations" under it, is like the class of unicorns, in other words, an empty class. Significantly, Ms Tydeman did not seek, by reference to the very written document brought into existence by the Registrar's delegate on 27 January 1993, to establish that that which the delegate had made, although a decision within the meaning of the JRA, had not been a "determination" under Pt 6A of the Assessment Act. The reason why she did not seek to do so seems to me to be obvious--it simply was incapable of being done.
14 In the circumstances, I must dismiss as incompetent Ms Tydeman's amended application under the JRA for an order of review. I also order Ms Tydeman to pay the Registrar's costs of the proceeding.
15 However, before I conclude these reasons, there is one further matter to which I wish to refer.
16 As is apparent from what I have already said above, Ms Tydeman's amended application in the present proceeding sought to challenge the lawfulness of conduct engaged in for the purpose of making a decision after that decision had already been made. In Minister for Immigration and Multicultural Affairs v Ozmanian (1996) 71 FCR 1 (Jenkinson, Sackville and Kiefel JJ), there was discussion of the question whether one can challenge under the JRA the lawfulness of conduct engaged in the purpose of making a decision after that decision has already been made (assuming, of course, that the decision, when made, is itself reviewable under the JRA). Sackville J said (at 18) that it was ultimately unnecessary for the purpose of that case to resolve that question. Nor has the question been authoritatively resolved since that case, so far as I am aware. Further, it is unnecessary to seek to resolve it for the purpose of this case, in light of the reasons I have given above.
17 However, if I had accepted Ms Tydeman's argument about the inapplicability of par (s) of Sch 1 of the JRA in the present proceeding, the question to which I have referred in the preceding paragraph of these reasons is certainly one on which I would have wished to hear submissions. (The point was not one argued before me by the Registrar, perhaps because of the Registrar's (in the result, justifiable) confidence in the strength of the point about par (s) of Sch 1 of the JRA which I have accepted.)
18 While I do, of course, remain open to persuasion on the question, my own strong inclination presently is that the legislature intended that conduct engaged in for the purpose of making a decision to which the JRA applies not be reviewable after that decision has itself been made. I infer such intention from the legislature's having made careful provision in the JRA regarding time limits for challenging the lawfulness of decisions and having made no provision at all in the JRA regarding time limits for challenging the lawfulness of conduct. It appears to me that the legislature considered it unnecessary to impose time limits for challenges to the lawfulness of conduct under the JRA, because it took the view that a "natural" time limit for such challenges was imposed by the fact that, after the conduct concerned had matured into a decision, one was required to challenge the lawfulness of the decision instead.
19 The present proceeding provides an example of the unusual consequences which can flow from the view that the lawfulness of conduct engaged in for the purpose of making a decision to which the JRA applies can still be challenged under the JRA after it has matured into a decision.
20 The decision relevant to the present proceeding was made, as I have already mentioned, as long ago as January of 1993 and was sent to Ms Tydeman very shortly thereafter, together with the reasons for its making. If that decision had been reviewable under the JRA (in other words, if par (s) of Sch 1 of the JRA had not caught it), then Ms Tydeman would (subject to the granting of an extension of time) have been obliged to challenge its lawfulness within four weeks of being furnished with it: see pars 11(1)(c) and 11(3)(a) of the JRA. On the other hand (and still assuming that the decision had been reviewable), there would have been no time limit whatever for Ms Tydeman's challenge under the JRA to the lawfulness of conduct engaged in for the purpose of making that decision, so that her challenge in the present proceeding to the lawfulness of such conduct, which challenge was made in October of 1998, well over five years after the making of that decision, would have been procedurally regular. So peculiar an outcome must cast serious doubt upon the correctness of the view that the lawfulness of conduct engaged in for the purpose of making a decision to which the JRA applies can still be challenged under the JRA after it has matured into a decision.
|
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable
Justice Katz. |
Associate:
Date: 12 February 1999
|
Counsel for the Applicant: | J. Therry-Ward |
| Solicitors for the Applicant: | Spooner and Bradshaw |
| Counsel for the Respondent: | G.T. Johnson |
| Solicitor for the Respondent: | Australian Government Solicitor |
| Date of Hearing: | 5 February 1999 |
| Date of Judgment: | 12 February 1999 |
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