Whittaker v Child Support Registrar [2010] FCA 43 (5 February 2010)

Last Updated: 12 February 2010

FEDERAL COURT OF AUSTRALIA

Whittaker v Child Support Registrar [2010] FCA 43

Citation:	Whittaker v Child Support Registrar [2010] FCA 43
Parties:	MARK ALAN WHITTAKER and ROTARY KILN SERVICES (AUSTRALASIA) PTY LTD (ABN 51 128 856 431) v CHILD SUPPORT REGISTRAR and COMMONWEALTH OF AUSTRALIA
File number(s):	NSD 204 of 2008
Judge:	LINDGREN J
Date of judgment:	5 February 2010
Catchwords:	ADMINISTRATIVE LAW – departure prohibition order made under s 72D of Child Support (Registration and Collection) Act 1988 (Cth) by Child Support Registrar – whether order valid – whether Registrar obliged to afford procedural fairness by giving an opportunity to be heard where Registrar had received a “tip off” from an anonymous telephone caller that the person was about to leave Australia – whether failure by Registrar to notify person that order had been made, as Registrar was required to do by s 72G of Act, was a failure to accord procedural fairness that rendered order invalid – whether Registrar failed to give such notice. Held: In each case, No. CONSTITUTIONAL LAW – whether Pt VA of Child Support (Registration and Collection) Act 1988 (Cth) invalid as conferring the judicial power of the Commonwealth on Child Support Registrar – Child Support Registrar was empowered to make departure prohibition order prohibiting a person from departing from Australia for a foreign country if, inter alia, the person had a child support liability and had not made arrangements satisfactory to the Registrar for the child support liability to be wholly discharged – consideration of factors indicative of “judicial power”. Held: Pt VA does not confer judicial power on Child Support Registrar. EVIDENCE – s 32 of Evidence Act 1995 (Cth) – deponents of affidavits refreshing their memories from contemporaneous notes for the purposes of making their affidavits, and attaching a copy of the notes to the affidavits – whether affidavits rendered inadmissible by s 32 because the court had not given leave for the witness to use the notes to try to revive his or her memory – whether s 32 applied to affidavits made out of court and in contemplation of the hearing. Held: No - s 32 applies only to evidence given in court. TORT – False Imprisonment – person intending to catch international flight detained in departure hall at airport because of departure prohibition order made in respect of him by Child Support Registrar under s 72D of Child Support (Registration and Collection) Act 1988 (Cth) – intending passenger could have abandoned attempt to depart and retreated out of airport’s departure hall – whether avenue of egress reasonable – statutory defence available to officials who had prevented intending passenger from catching international flight because departure prohibition order made by Child Support Registrar was in force in respect of him – s 72U of Act permitted authorised officers in certain circumstances to prevent person’s departure from Australia. Held: “imprisonment” not established because reasonable egress available and, in any event, statutory defence established. TORT – interference with contractual relations by unlawful means – person intending to depart Australia by plane to perform contract overseas – departure prohibition order made by Child Support Registrar under s 72D of Child Support (Registration and Collection) Act 1988 (Cth) was in force in respect of him – Customs officers questioned him – Australian Federal Police officers told him he could not fly – mental element of the tort in circumstances in which the respondents are public officials – whether state of mind required for this tort is different from that required for the tort of misfeasance in public office. Held: No.
Legislation:	Acts Interpretation Act 1901 (Cth) ss 28A, 29 Child Support (Assessment) Act 1989 (Cth) ss 23, 30, 58, 77, 78, 79 Child Support (Registration and Collection) Act 1988 (Cth) ss  72D to 72H, 72Q, 72S, 72T, 72U, 72X, 76  Constitution ss 51(xxii), 51(xxxvii), 51(xxxix), 122 Customs Act 1901 (Cth) ss 234AA(1), 234A, 234ABA(1). Evidence Act 1995 (Cth) Act ss 32, 34, 52 Federal Court of Australia Act 1976 (Cth) s 47(3) Migration Act 1958 (Cth) ss 165, 175 Taxation Administration Act 1953 (Cth) ss 14S, 14T, 14V Child Support (Registration and Collection) Regulations 1988 (Cth) regs 14, 15
Cases cited:	Albarran v Companies Auditors and Liquidators Disciplinary Board [2007] HCA 23; (2007) 231 CLR 350 cited Aneve Pty Limited v Bank of Western Australia Limited [2005] NSWCA 441 cited Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596 followed Attorney-General for the Commonwealth of Australia v Alinta Limited [2008] HCA 2; (2008) 233 CLR 542 cited Attorney-General (Qld) v Francis [2008] QCA 243; (2008) 250 ALR 555 cited Dalco v Federal Commissioner of Taxation (1987) 19 ATR 443 discussed Edelsten v Federal Commissioner of Taxation (1989) 85 ALR 226 discussed Fancourt v Mercantile Credits Limited [1983] HCA 25; (1983) 154 CLR 87 followed Grech v Featherstone (1991) 33 FCR 63 cited Huddart, Parker and Co Proprietary Limited v Moorehead [1909] HCA 36; (1908) 8 CLR 330 cited Kamha v Australian Prudential Regulation Authority [2005] FCAFC 248; (2005) 147 FCR 516 cited Kioa v West [1985] HCA 81; (1985) 159 CLR 550 followed Lindsay-Owen v Lake [2000] NSWSC 1046 followed Louis v Commonwealth of Australia (1987) 87 FLR 277 cited Luton v Lessels [2002] HCA 13; (2002) 210 CLR 333 referred to McFadzean v Construction, Forestry, Mining and Energy Union (2007) 20 VR 250 followed Northern Territory of Australia v Mengel [1995] HCA 65; (1995) 185 CLR 307 cited Port of Melbourne Authority v Anshun Proprietary Limited [1981] HCA 45; (1981) 147 CLR 589 cited Precision Data Holdings Limited v Wills [1991] HCA 58; (1991) 173 CLR 167 cited Re Ranger Uranium Mines Proprietary Limited; Ex parte Federated Miscellaneous Workers’ Union of Australia [1987] HCA 63; (1987) 163 CLR 656 cited Sanders v Snell [1998] HCA 64; (1998) 196 CLR 329 applied The Balmain New Ferry Company Limited v Robertson [1906] HCA 83; (1906) 4 CLR 379 cited The Queen v The Trade Practices Tribunal; Ex parte Tasmanian Breweries Proprietary Limited [1970] HCA 8; (1970) 123 CLR 361 cited The Waterside Workers’ Federation of Australia v JW Alexander Limited [1918] HCA 56; (1918) 25 CLR 434 cited Troughton v Deputy Commissioner of Taxation [2008] FCA 18; (2008) 166 FCR 9 cited Visnic v Australian Securities and Investments Commission [2007] HCA 24; (2007) 231 CLR 381 cited Whittaker v Child Support Registrar [2000] FCA 1733; (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 Butterworths, Halsbury’s Laws of Australia, vol 26 (service 272), 45 Tort, ‘5 Intentional Interference with Trade or Business’
Date of hearing:	6, 7 August, 14, 15, 16, 17, 18 September 2009
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	356
Counsel for the Applicants:	Mr P E King
Solicitor for the Applicants:	McKells Solicitors
Counsel for the Respondents:	Mr S B Lloyd SC
Solicitor for the Respondents:	Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	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 OF ORDER:	5 FEBRUARY 2010
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The proceeding be dismissed.
2. The applicants pay the respondents’ costs
   

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
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	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:	5 FEBRUARY 2010
PLACE:	SYDNEY

TABLE OF CONTENTS

	para
INTRODUCTION	[1]
THE ASSESSMENT ACT, THE COLLECTION ACT AND THE MAKING OF THE DPO	[5]
THE FACTS IN OUTLINE	[28]
MR WHITTAKER’S ACCOUNT OF EVENTS AND HIS CREDIT	[53]
General	[53]
The beginning	[58]
Conversations with Customs officers on Friday 15 February 2008	[60]
Conversations with AFP officers on Friday 15 February 2008	[71]
Mr Whittaker’s visit to the “Passport Office” in the CBD	[96]
Mr Whittaker’s dealings with Ms Pitt of the AGS	[101]
Conversation with Customs officers on Saturday 16 February 2008	[116]
Conversation with AFP officers on Saturday 16 February 2008	[120]
Specific attacks on Mr Whittaker’s credit	[137]
CONSIDERATION OF THE PLEADED CAUSES OF ACTION	[177]
(a) False imprisonment of Mr Whittaker by officers of the Commonwealth in the departure hall at the airport on 15 and 16 February 2008	[177]
(b) Assault of Mr Whittaker by officers of the Commonwealth in the departure hall on 15 and 16 February 2008	[196]
(c) Trespass to Mr Whittaker’s property at the airport on 15 and 16 February 2008	[197]
(d) Interference with contractual relations by unlawful means on 15 and 16 February 2008	[203]
(e) Interference with the trade or business of Rotary and/or Mr Whittaker on 15 and 16 February 2008	[231]
(f) Intimidation of Mr Whittaker on 15 and 16 February 2008	[235]
(g) Denial by the Registrar of procedural fairness to Mr Whittaker in connection with the making of the DPO on 6 December 2006	[236]
(i) The tip-off	[236]
(ii) Failure by Registrar to notify Mr Whittaker of making of DPO	[262]
(h) Bad faith on the part of the Registrar or absence of reasonable grounds in making the DPO on 6 December 2006	[280]
(i) Appeal to this Court under s 72Q of the Collection Act against the making of the DPO	[295]
(j) Challenge to the validity of Part VA of the Collection Act	[305]
CONSIDERATION OF TWO FURTHER MATTERS	[328]
Objection to affidavit evidence – s 32 of the Evidence Act 1995 (Cth)	[328]
Making of the DPO – absence of original DPO	[344]
CONCLUSION	[356]

REASONS FOR JUDGMENT

INTRODUCTION

1. The first applicant, Mark Alan Whittaker (Mr Whittaker) and the second applicant, Rotary Kiln Services (Australasia) Pty Ltd (Rotary), of which Mr Whittaker is the sole director, sue the first respondent, the Child Support Registrar (Registrar), and the second respondent, the Commonwealth of Australia (Commonwealth), on causes of action arising out of two incidents that occurred at Kingsford Smith International Airport, Sydney on Friday 15 and Saturday 16 February 2008. On each occasion, Mr Whittaker was not permitted to board a Singapore Airlines flight. His intention was to travel via Singapore to Langkawi, Malaysia, and there to carry out certain work pursuant to an arrangement with Phillips Kiln Services Asia-Pacific (Phillips).
2. Mr Whittaker was not permitted to board the flights because of a Departure Prohibition Order (DPO) which prohibited him from departing Australia for a foreign country. The DPO was made by a delegate of the Registrar under s 72D of the Child Support (Registration and Collection) Act 1988 (Cth) (Collection Act).
3. Numerous causes of action are pleaded by the applicants in their Further Amended Statement of Claim filed on 15 May 2009 (FASOC). Rotary’s claim is, in general terms, that it had a contract with Phillips for the performance of the work in Malaysia and that in consequence of Mr Whittaker’s not being permitted to travel, Rotary had to engage another individual to perform the work that Mr Whittaker would otherwise have performed, and suffered loss as a result.
4. The causes of action as pleaded in the FASOC may be summarised as follows (paras 7 – 7E repeat paras 6 – 6E, but I will treat them, as the parties did, as referring to 15 February 2008 and Flight SQ 232 (paras 6-6E) and 16 February 2008 and Flight SQ 222 (paras 7-7E)):

(a) false imprisonment of Mr Whittaker by officers of the Commonwealth in the departure hall at the airport on 15 and 16 February 2008;

(b) assault of Mr Whittaker by officers of the Commonwealth in the departure hall on 15 and 16 February 2008;

(c) trespass to Mr Whittaker’s property at the airport on 15 and 16 February 2008;

(d) interference with contractual relations on 15 and 16 February 2008;

(e) interference with the trade or business of Rotary and/or Mr Whittaker on 15 and 16 February 2008;

(f) intimidation of Mr Whittaker on 15 and 16 February 2008;

(g) denial by the Registrar of procedural fairness to Mr Whittaker in connection with the making of the DPO on 6 December 2006;

(h) bad faith on the part of the Registrar or absence of reasonable grounds in making of the DPO on 6 December 2006;

(i) an appeal to this Court under s 72Q of the Collection Act against the making of the DPO; and

(j) a challenge to the validity of Part VA of the Collection Act.

THE ASSESSMENT ACT, THE COLLECTION ACT AND THE MAKING OF THE DPO

5. The Collection Act establishes the position of Child Support Registrar, an office that is to be filled by the General Manager of the Child Support Agency (CSA) (s 10). The expression “child support” is defined in s 4 of the Collection Act to mean financial support under the Child Support (Assessment) Act 1989 (Cth) (Assessment Act).
6. 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)). Parents are stated to have the primary duty to maintain their child (s 3(1)). Two of the principal objects of the Collection Act are to ensure that children receive from their parents the financial support that the parents are liable to provide, and to ensure that periodic amounts payable by parents towards the maintenance of their children are paid on a regular and timely basis (s 3(1)(a) and (b)).
7. Section 23 of the Assessment Act provides that an application for an administrative assessment of child support is properly made if it complies with certain specified provisions. “Child support” is defined in s 5 of that Act to mean financial support under the Assessment Act. If the Registrar is satisfied that an application has been properly made, the Registrar must accept it, otherwise he or she may refuse it: s 30.
8. Section 58 of the Assessment Act addresses the situation in which the Registrar is unable readily to ascertain the taxable income or “supplementary amount” of a person. The section provides that in those circumstances, in making an assessment of the child support payable, the Registrar may act on the basis that the person’s taxable income or supplementary amount or both (as the case may be) for the year of income is “such amount as the Registrar considers appropriate”. I need not discuss the meaning of “supplementary amount” or a certain maximum amount to which the Registrar’s discretion is expressed to be subject.
9. Because of Mr Whittaker’s failure to lodge an income tax return, the Registrar was not able readily to ascertain his taxable income. The Registrar made an administrative assessment of child support with a start date of liability (SDOL) of 14 September 1994. As at 6 December 2006, the date of the DPO, the administrative assessment was based on a 2005/2006 “median” income of $25,468. Under s 58, the Registrar acted on the basis that that amount was Mr Whittaker’s taxable income.
10. Generally speaking, s 77 of the Assessment Act provides that when the Registrar has made an assessment of child support, the amount of the child support is payable by the liable parent to the carer. Section 78 deals with the time at which the amount is payable, and s 79 provides that an amount of child support due and payable by the liable parent to the carer entitled to child support is a debt due and payable by the liable parent to that carer and may be sued for and recovered. The expressions “liable parent” and “carer entitled to child support” are defined in s 31 of the Assessment Act. In the present case, Mr Whittaker was the liable parent and apparently his former wife and mother of the child in question was the carer entitled to child support.
11. The general scheme of the Collection Act allows registration of a “registrable maintenance liability” by the Registrar in a “Child Support Register” (Register) which the Act requires the Registrar to keep (s 13).
12. The expression “registrable maintenance liability” is defined in s 17 of the Collection Act. It suffices to say that, subject to any exclusion by regulation, a liability is a registrable maintenance liability if it arises under a child support assessment (s 17(2)).
13. Section 24A(1) provides that, subject to an exception not presently relevant, where the Registrar makes a child support assessment under which a registrable maintenance liability arises, the Registrar must immediately register the liability in the Register.
14. Once the registrable maintenance liability is so registered, the amounts payable become debts due to the Commonwealth instead of to the carer (s 30) and the Commonwealth becomes responsible to collect them and to remit amounts collected to the carer. Accordingly, the carer is no longer entitled to, and may not enforce payment of, amounts payable under the liability: s 30(3).
15. Section 71 of the Collection Act deals with payments that are made directly to the payee (“Non-Agency Payments” or “NAPs”). It provides for the Registrar to credit the amounts of NAPs as if they had been paid to the Registrar.
16. Part VA of the Collection Act is headed “Departure prohibition orders”. Sections 72D to 72H within that Part are, relevantly, as follows (although I use the present tense, ss 72D and 72E have been amended and I am describing them, as I describe the other sections of both the Assessment Act and the Collection Act, as they were in December 2006, prior to the amendments):

Division 1—Registrar may make departure prohibition orders

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.

72E Meaning of child support liability

For the purposes of this Part, a person has a child support liability if:

(a) the person has a registrable maintenance liability of a kind mentioned in section 17; and
(b) an amount payable under the registrable maintenance liability is a child support debt; and
(c) the day on which the debt became due and payable under section 66 has passed, and the debt remains unpaid in whole or in part.

Division 2—Offence provision

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.

Division 3—Administrative requirements

72G Notification requirements for departure prohibition orders
(1) This section applies if the Registrar makes a departure prohibition order in respect of a person.
(2) The Registrar must notify the person that the order has been made.
(3) The notice must be in the approved form and must be given as soon as practicable after making the order.

Note: For approved form see section 72.

(4) The Registrar must give to the Secretary of the Department of Immigration and Multicultural Affairs a copy of the order, and information likely to facilitate identification of the person, for the purposes of administering the Migration Act 1958, unless the Registrar is satisfied that the person is an Australian citizen.
(5) The Registrar must also give a copy of the order, and information likely to facilitate identification of the person for the purposes of this Part, to such other persons as the Registrar considers appropriate in the circumstances, being persons prescribed by the regulations for the purposes of this subsection.
(6) The Registrar must give a copy of the order or information under subsection (4) or (5) as soon as practicable after making the order.

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.

(2) ...

17. Section 72I provides for revocation and variation of DPOs by the Registrar and s 72J obliges the Registrar to notify a person who applied for a revocation or variation of the Registrar’s decision on the application.
18. Division 4 within Part VA is headed “Departure authorisation certificates”. Section 72K within that Division provides that a person in respect of whom a DPO is in force may apply for a certificate authorising the person to depart from Australia for a foreign country (a “departure authorisation certificate” – DAC). Section 72L provides for the Registrar to issue a DAC in certain circumstances.
19. Mr Whittaker did not apply for a DAC.
20. On 6 December 2006, Glenda Scott as delegate of the Registrar made a DPO in respect of Mr Whittaker on account of a child support liability being a debt arising from a registrable maintenance liability registered under s 17 of the Collection Act. The DPO was in force on 15 and 16 February 2008.
21. In the way in which the applicants’ case was ultimately put, they contend that when Mr Whittaker attempted to depart Australia on 15 and 16 February 2008, he did not know that the DPO was in force in respect of him. His lack of knowledge would be relevant to the question whether he contravened s 72F of the Collection Act set out at [16] above. Mr Whittaker gave evidence that he did not receive notice from the Registrar that the DPO had been made: see s 72G(2) set out at [16] above. In this respect, the respondents rely on service by post (see [262]ff below).
22. Mr Whittaker’s evidence in the ultimate form that it took was that he worked it out that there must be a DPO in respect of him on the night of Saturday 16 February 2008 – after he was not permitted to fly for the second time. As will appear below, I do not accept his evidence that he did not know on 15 and 16 February 2008 that a DPO had been made in respect of him.
23. Section 72Q of the Collection Act provides that a person aggrieved by the making of a DPO may appeal to this Court or to the Federal Magistrates Court of Australia against the making of the DPO. Section 72S provides that the Court hearing the appeal may, in its discretion, make an order setting aside the DPO or dismiss the appeal.
24. Section 72T of the Collection Act provides for the making of an application to the Administrative Appeals Tribunal (AAT) for review of a decision of the Registrar under s 72I, 72L or 72M of the Collection Act (s 72M is not presently relevant).
25. 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.

It will be noted that the belief on reasonable grounds does not extend to a belief on reasonable grounds as to the element of the person’s own state of knowledge or recklessness found in s 72F (set out at [16] above). In other words, even if Mr Whittaker did not know, when attempting to depart Australia, that there was a DPO in force in respect of him, that would have nothing to do with the powers of authorised officers under s 72U.

26. The expression “authorised officer” is defined in s 72X to mean an officer within the meaning of the Customs Act 1901 (Cth) (Customs Act) or a member of the Australian Federal Police (AFP). Both officers of Australian Customs Service (ACS) (Customs officers or ACS officers) and AFP officers had roles to play in relation to Mr Whittaker on 15 and 16 February 2008.
27. Section 76 creates an entitlement in the payee of a registered maintenance liability to be paid, relevantly, amounts received by the Registrar in relation to the liability.

THE FACTS IN OUTLINE

28. Mr Whittaker commenced this proceeding on Monday 18 February 2008. That was the Monday following the incidents at the airport on Friday 15 and Saturday 16 February 2008. The following affidavits made by Mr Whittaker, or parts of them, were read:

18 June 2009 (affidavit of 84 paragraphs and exhibits MAW – 01 to MAW – 25)

30 July 2009 (affidavit in reply of 21 paragraphs)

4 August 2009 (affidavit in reply of 101 paragraphs)

8 September 2009 (affidavit in reply of 58 paragraphs)

14 September 2009 (affidavit of 16 paragraphs).

29. The affidavits read on behalf of the respondents were also numerous. It is convenient to divide the deponents of them into two broad categories and to subdivide the second category. The first category consists of officers of the CSA. The second category comprises ACS and AFP officers who had a role to play in the incidents at the airport. I refer to Senior Constables Jarvis, Mangkuwerdojo and Khier as “AFP officers.” They were members of the NSW Police Force who were seconded to the AFP at the relevant time.
30. The deponents can be summarised as follows:

CSA officers

Kevin Richard Cahill;

David James Badke

Judith Jackson

Trent Wearne

James Cameron Wines

The two incidents at the airport

(1) Incident on Friday 15 February 2008

ACS

Jodie Ellis, who was the passenger processor (clearance officer – see below) on the outbound primary line of consoles or workstations who dealt with Mr Whittaker.

Tomás Maolra de Bhaldraithe, who was the supervisor on the outbound primary line.

AFP

Senior Constable Nigel Stephen Allan Jarvis

Senior Constable Komran Mangkuwerdojo

Senior Constable Mohamad Khier

(2) Incident on Saturday 16 February 2008

ACS

Samantha Blair, who was the passenger processor (clearance officer – see below) on the outbound primary line of consoles or workstations who dealt with Mr Whittaker.

Dean Francis Le Miere, who was on duty as Control Room operator in the Customs Control room on a lower level at the airport.

AFP

Federal Agent Stuart Charles Lokhee

Federal Agent Lori-Anne Mackay

Megan Patricia Pitt also made an affidavit that was read by the respondents. Ms Pitt was the director of the Sydney office of the Australian Government Solicitor (AGS).

31. There is an area at the airport that has been variously called in the evidence the “departure hall” or “outbound immigration area” or “Passport Control”. Section 234AA(1) of the Customs Act provides, relevantly, that where a place is to be used by officers (defined to mean an officer of Customs) for questioning passengers embarking on an aircraft, for the purposes of the Customs Act or of any other law of the Commonwealth, a Collector or a person authorised by a Collector may cause signs to be displayed at or near the place that identify the place and state that entry into it by unauthorised persons is prohibited by the Customs Act. Such a place is referred to in the Customs Act as a “restricted area”.
32. Section 234A(1) of the Customs Act provides that a person must not enter into or be in a place in relation to which a sign is displayed under s 234AA(1) of that Act. Exceptions are created by subs (1A) of s 234A. These include, relevantly, a passenger embarking on an aircraft, and a class of persons that may be described as “authorised persons”.
33. There was evidence, which I accept, that on 15 and 16 February 2008, the departure hall was a restricted area under s 234AA of the Customs Act and that signs were displayed in relation to it on the glass entry doors, on the floor and in upright frames stating that entry into it except by travellers and authorised persons was prohibited by the Customs Act. It was not suggested that the departure hall was not a restricted area or was not identified as such by appropriately placed signs.
34. A Customs officer has power to direct a person to leave a restricted area if the officer reasonably believes that the person is in that place in contravention of s 234A: s 234ABA(1).
35. Section 8(1)(b) of the Australian Federal Police Act 1979 (Cth) (AFP Act) makes it a function of AFP officers, relevantly, to provide police services in relation to laws of the Commonwealth and the safeguarding of Commonwealth interests. However, the provision seems to assume no importance in the present case in view of the more specific provision found in s 72U of the Collection Act (set out at [25] above).
36. Generally speaking, passengers intending to depart from Australia by air are entitled to enter the departure hall. All being well, they will be permitted to go from there in order to access the parts of the airport from which aircraft can be boarded. In the departure hall are Customs officers who check passports and other travel documents and information. The terms “landside” and “airside” are used to describe the sides of the outbound primary line from and to which, respectively, intending passengers desire to pass.
37. Customs officers who work in the departure hall checking passports and relevant documents or information have the authority of “clearance officers” under the Migration Act 1958 (Cth) (Migration Act). Section 165 of that Act provides that “clearance officer” means an officer or person authorised by the Minister to perform duties for the purposes of Div 5 of Pt 2 of the Migration Act. Section 175 within that Division empowers clearance officers to require persons who are about to board, relevantly, an aircraft, to present to the officer their passports and prescribed kinds of information. In the present case Mr Whittaker handed over, on each day, his passport, boarding pass and passenger departure card.
38. The clearance officers inspect the documents and, at least in the case of the passport, scan it. One function of the scanning is to identify if the intending passenger is the subject of any form of restraint on travel. In the present case on both days a “do not process” alert appeared on the computer screen of the Customs officer/clearance officer in relation to Mr Whittaker. The Customs officer at the console does not know from the information available on the computer the specific reason for the alert. The Customs officer checks that the details of the person the subject of the alert match the details of the passenger. If there is a “no match” the person is permitted to travel. If there is a “match” the Customs officer refers the matter on as described below.
39. On 15 February 2008, Customs officer Jodie Ellis was performing passenger processing duties at a console on the outbound primary line within the departure hall. She scanned Mr Whittaker’s passport. A “do not process” alert appeared on the screen. The supervisor of the outwards primary line, called a “bravo”, was Mr De Bhaldraithe. Neither Ms Ellis nor Mr De Bhaldraithe could recall the specific events involving Mr Whittaker, although Mr De Bhaldraithe said he had a vague recollection of Mr Whittaker. Records show that Ms Ellis scanned Mr Whittaker’s passport at 11:30:32 on Friday 15 February 2008. The evidence shows that the alert would have been communicated to the Customs Control room and that Mr De Bhaldraithe was the bravo on duty to whom, in accordance with the usual practice established by the evidence, the Customs Control room would have referred the alert.
40. In accordance with the usual practice, Mr De Bhaldraithe would have asked Mr Whittaker to wait in the departure hall and made contact with the AFP. Three AFP officers, Senior Constables Jarvis, Mangkuwerdojo and Khier, attended at the departure hall and spoke to Mr Whittaker.
41. Because of the DPO, which was found to be the reason for the alert, Mr Whittaker was not permitted to board Singapore Airlines flight SQ 232 for which he had a ticket and boarding pass. His luggage was offloaded and he collected it at the Singapore Airlines office. I digress to note that the word “offloaded” is also used to refer to the process by which an intending passenger to whom an airline has given a boarding pass and whose luggage (if any) the airline has accepted, is removed from the list of intending passengers in consequence of a decision that he or she is not to be permitted to travel. The expression can therefore be used in relation to intending passengers who do not reach the stage of physically boarding the aircraft.
42. When he collected his luggage, Mr Whittaker booked himself on Singapore Airlines Flight SQ 222 which was scheduled to depart at 4:55 pm on the following day, Saturday 16 February 2008.
43. Mr Whittaker went to the Department of Immigration in the Sydney CBD to make inquiries. While there, he received telephone calls and a text message on his mobile phone from Mr Badke of the CSA. There is conflict between Mr Whittaker and Mr Badke as to the content of the telephone conversations. The conversations did not lead to a resolution of the issue concerning the DPO.
44. On Saturday 16 February 2009, Mr Whittaker had a conversation with Ms Pitt of the AGS in relation to the DPO (Mr Whittaker’s evidence was that he also spoke to her on the Friday night but I do not accept that he did - see below). Again, there is a difference in their versions of events. The contact between Mr Whittaker and Ms Pitt also did not lead to a resolution.
45. Mr Whittaker nonetheless attempted to depart on the flight for which he was booked on the Saturday. At the airport, the course of events was generally similar to that of the preceding day. Mr Whittaker presented at the departure hall with his passport, boarding pass and departure card. On this occasion the Customs officer at the console who dealt with Mr Whittaker was Samantha Blair. Unlike Ms Ellis, Ms Blair has some recollection of the events. She recalls Mr Whittaker saying that he had had an issue on the previous day. She recalls him saying words to the effect that he had a cementing business and a cementing contract in Singapore or Malaysia, that he was cutting it fine for the flight, and that if he missed the flight and lost the contract he would sue.
46. When Ms Blair scanned Mr Whittaker’s passport, a “do not process alert” appeared on the screen. As Mr Whittaker’s date of birth on his passport did not match that on the alert, she tried to record that it was a “no match” but the system would not let her do so (other evidence established that there was a one day discrepancy in the dates of birth shown on the alert and on the passport).
47. Ms Blair referred the matter to her supervisor, but could not recall who that was. When Ms Blair returned to her console, she handed Mr Whittaker’s documents back to him and told him that someone would come to speak to him shortly. She directed him where to take a seat, which was over by the crew barrier near the pylon in the departure hall.
48. The ACS made contact with the AFP. Federal Agents Lokhee and Mackay came and spoke to Mr Whittaker. Again, there is a conflict in the evidence as to the conversation. Mr Whittaker was again not permitted to board, his luggage was offloaded from the aircraft and he collected it from the Singapore Airlines office.
49. Mr Whittaker or his partner or both of them, set about arranging for a person to go to Malaysia in place of Mr Whittaker. The individual who did so was Aaron Di Giacomo of Perth. Mr Whittaker paid for Mr Di Giacomo’s airline ticket. Mr Di Giacomo undertook the work at Langkawi in place of Mr Whittaker.
50. On Monday 18 February 2008, Mr Whittaker commenced this proceeding. He sought urgent interlocutory relief.
51. Eventually on 28 February 2008, Branson J made orders, apparently by consent, staying the operation of the DPO upon Mr Whittaker’s giving certain undertakings to the Court.
52. On 2 March 2008 Mr Whittaker attended at the airport intending to board Singapore Airlines Flight SQ 220 to Singapore. He checked his baggage in, received a boarding pass and proceeded to the departure hall. He presented his passport, boarding pass and passenger departure card. This time, after the position was checked, he was allowed through and boarded the plane.

MR WHITTAKER’S ACCOUNT OF EVENTS AND HIS CREDIT

General

53. I have no doubt that Mr Whittaker’s evidence is heavily affected by what has become an emotional issue for him. It is necessary for me to discuss this because it is relevant to my assessment of his credit generally.
54. The daughter of Mr Whittaker’s former marriage was born on 28 February 1989 in England. Apparently, husband, wife and daughter came from England to Australia to live but the parents separated in 1991, after which the wife and daughter returned to England. Apparently they returned to Australia, when Mrs Whittaker applied under the Assessment Act for an administrative assessment of child support. As noted at [9] above, the assessment was made with an SDOL of 14 September 1994. It seems that on 9 December 1994 Mrs Whittaker applied for the child support to be collected by the CSA. Mr Whittaker’s liability was registered as a registrable maintenance liability under the Collection Act on 30 December 1994.
55. As I understand his position, Mr Whittaker accepts that he had a responsibility to support his daughter but asserts that he was entitled to do so and in fact did so outside the child support system established by the Assessment Act and enforceable under the Collection Act. He has a deep rooted objection to what as he sees as the “interference” by the Registrar and the officers of the CSA in the family relationship.
56. There is nothing controversial in [53]-[55] above. Mr Whittaker’s own counsel made reference to it in opening his client’s case (on the issue of damages). He said:

Your Honour will be aware, and no doubt this will be the subject of some criticism of the first applicant, that although the first applicant has sought over time to avoid contact with the Child Support Registrar, he and the Child Support Registrar from time to time have not had particularly good relations. For him, that has been something which has become a somewhat emotional issue. He has considered that he has met all his obligations to the child of his first marriage informally. That is, not through the formal processes adopted by the Child Support Registrar and he has a particular view as to why his former spouse has adopted the approach she has in relation to the asserted child support liability in this particular case. That however, your Honour, is not a matter for present consideration. I only mention it because it may impact upon damages.

The relevance of the above background, on which I will elaborate below, to the events of 15 and 16 February 2008 is that Mr Whittaker’s strong antipathy to the child support system goes some way to explain the numerous unsatisfactory aspects of his testimony.

57. The respondents attacked the credit of Mr Whittaker in particular respects which I discuss at [137]ff below. For the present, I wish to note the general features of his account of events as given in his affidavit of 18 June 2009 and some of the credit issues to which that account gives rise.

The beginning

58. Mr Whittaker’s negotiation of the arrangement for the performance of work at Langkawi in Malaysia was made with Glyn Cox of Phillips. Exhibit MAW-09 is a quote numbered “NSW0108” issued by Rotary to Phillips dated 13 February 2008. In para 21 of his affidavit Mr Whittaker said that following the creation and forwarding of the quote, he booked his airline tickets from Cairns (where he lived) to Sydney and from Sydney to Langkawi. Orally he corrected that evidence to say that he booked his airline tickets on 11 February 2008. Indeed, exhibit MAW-10 to his affidavit includes an invoice from Rotary to Phillips for the airfares dated 12 February 2008.
59. According to Mr Whittaker’s affidavit, on Friday 15 February 2008 he departed Cairns for Sydney at approximately 6.50 am, arrived at Sydney Domestic Airport at approximately 10.45 am, travelled by train to Kingsford Smith International Airport, and presented at the Singapore Airlines counter at approximately 11.10 am. There his baggage was checked in and a boarding pass was issued to him in respect of Singapore Airlines Flight SQ 232 to Singapore.

Conversations with Customs officers on Friday 15 February 2008

60. Mr Whittaker then presented himself at the Immigration Passport Control counter with his passport, passenger departure card and boarding pass. He said that an officer wearing a uniform with a Commonwealth badge on it requested him to hand over the documents and he did so. The evidence of the various Customs officers was that they wear a uniform when on duty marked with the word “CUSTOMS” on the front pocket of the shirt and on the front of the jacket, and that there is a badge on the shoulder of the shirt also saying “CUSTOMS”.
61. In his affidavit, Mr Whittaker refers to the Customs officer numerous times as “he”. It transpires that according to computer records, and I so find, the officer who dealt with Mr Whittaker on 15 February 2008 was in fact Ms Jodie Ellis. The computer records show that it was she who scanned his passport. Mr Whittaker was given the opportunity in cross-examination to agree that the officer at the console was a female but he said (twice) that the person “was definitely a male” and said that his recollection of this was “perfect”.
62. Ms Ellis’s evidence of the usual practice that is followed by her as a clearance officer accords with Mr Whittaker’s testimony in this respect: she does not inform an intending passenger of the reason for the ‘do not process” alert. Indeed, the evidence is that a clearance officer does not have access to that information.
63. Ms Ellis’s evidence is that her practice, when the details in the passport correlate with those in the alert, is to send a message to the Customs Control room which has access to those details, and that if a “match” is confirmed by the Customs Control room, it will telephone the primary line supervisor to confirm the match. The supervisor then attends at the particular console or workstation to deal with the intending passenger. Ms Ellis states that she does not volunteer information to the passenger that he or she may not be permitted to travel.
64. Mr Whittaker says that Ms Ellis (or, in his evidence, the male officer) requested him to wait until the AFP arrived but Ms Ellis says that she has never asked someone to wait until the AFP arrives, and that it is the supervisor, rather than she, who has always dealt with her “do not process” cases. Mr Whittaker does not mention Ms Ellis’s supervisor at all.
65. Mr De Bhaldraithe gave evidence that on Friday 15 February 2008 he was working as the outwards primary line “bravo”. He defined “bravo” as “a supervisor of the outwards primary line, that is, the outwards departure, Immigration”. He said that the ACS maintains a “Passenger Analysis and Clearance Evaluation” (PACE) database which stores information regarding alerts placed by different agencies and authorities in respect of individuals. Mr De Bhaldraithe checked PACE and ascertained that Mr Whittaker’s passport details were scanned into the system at 11:30:32 on Friday 15 February 2008 by Jodie Ellis (he also ascertained from PACE that Mr Whittaker’s passport was again scanned on the following day, 16 February 2008 at 16:22:52 – see below).
66. Mr De Bhaldraithe described his practice when the Customs Control room calls him to confirm a “match” for a “do not process” that has been triggered on the primary line. He says that he goes to the module and asks the passenger to wait at the side near the wall where someone will come to talk to him or her. Mr De Bhaldraithe says that it is not his usual practice to say who this will be, although it is possible that he may say “Officers will attend to talk to you”, indicating only that someone in an official capacity will be coming.
67. Mr De Bhaldraithe says that the final determination of whether a person who has triggered a “do not process” alert is allowed to travel is normally made by the AFP.
68. Mr De Bhaldraithe states the obvious: intending passengers want to travel and so will want to wait to have the issue of their being permitted to do so resolved. Mr Bhaldraithe stated in his affidavit:
    9. ... The departure hall can be very busy. If there are free seats available, it is my practice to simply point out where the seats if any are landside. If all the seats are occupied by other passengers then I will arrange for a chair to be provided for the passenger to sit on while he or she is waiting. The area where the seats are is in the departure hall. I would not describe it as a confined area or a separate area within the departure hall.
       
    10. It is my usual practice, with a ‘do not process’ not to retain the passenger’s passport, boarding pass or passenger departure card. After explaining to a passenger that they can wait I normally give the passenger back their passport, boarding pass and passenger departure card. For other types of alerts there may be instructions in the alert to hold onto their documents. This is not the case for a ‘do not process’.
        
69. I accept the effect of the evidence of Ms Ellis and Mr De Bhaldraithe in preference to that of Mr Whittaker in the following respects:
    • It was a female Customs officer, Jodie Ellis, who dealt with Mr Whittaker at the console, not a male Customs officer;
    • Contrary to Mr Whittaker’s evidence, the Customs officer did not leave the console;
    • Mr De Bhaldraithe was interposed between Ms Ellis and the AFP in dealing with Mr Whittaker – a fact that finds no place in Mr Whittaker’s account;
    • Neither Ms Ellis nor Mr De Bhaldraithe requested or directed Mr Whittaker to await the arrival of the AFP or otherwise referred to the AFP.
70. Mr Whittaker stated (para 27):

I asked the Officer [according to Mr Whittaker’s affidavit, a reference to the officer operating the computer at the console or workstation – in the light of the above, Ms Ellis] again what the problem was. He replied “you have to wait”. At this time I became extremely concerned that I was being arrested on a mistake. He [also] said, “You must stay here. Do not move out of this area”. I understood from his words and actions that my movements into and out of the enclosed area were restrained, that I had no choice except to remain there by law, as I was subject to a direction by a Commonwealth Public Officer.

Apart from the fact that it transpires that the officer at the console was Ms Ellis, it will be appreciated that the evidence given by Ms Ellis and Mr De Bhaldraithe, while based on their practice rather than their recollection of the individual case, is quite different from that given by Mr Whittaker in the passage quoted.

Conversations with AFP officers on Friday 15 February 2008

71. Mr Whittaker’s account of the arrival of the AFP officers was similarly coloured. He stated (paras 28 and 29):
    28. Approximately twenty minutes later the Federal Police arrived. Three or four Officers came directly to me. They walked past the security guard [this reference was admitted as Mr Whittaker’s understanding of the status of a person stationed at the entry to/exit from the departure hall] at the only exit point to the enclosed area and they nodded at each other as the officers walked through. I stood then up [sic – then stood up]. One of the officers who appeared to be the leader spoke aggressively to me and said “I am an Australian Federal Police Officer. I am directing you to sit down where you are in that chair and wait”. He then motioned for me to sit down which I did. To me it was a frightening situation. The chair was in a corner of the Immigration zone with partitions separating it from the general area. There was only one exit point which had a security guard.
        
    29. Two of the Federal Police Officers then stood in front of me... facing towards me with their arms folded while the Officer who appeared to be the team leader spoke with the Commonwealth Passport Officers.
        
72. According to the affidavits of Senior Constables Jarvis, Mangkuwerdojo and Khier, it was those three officers who dealt with Mr Whittaker. Senior Constables Mangkuwerdojo and Khier arrived together, but Senior Constable Jarvis arrived from airside later. Senior Constable Mangkuwerdojo made notes in his notebook following the events, and the other two senior constables contributed. Senior Constable Mangkuwerdojo stated in his affidavit (para 2):

It is my practice to make file notes in my police notebook as soon as possible after an incident. It is also my practice to ask any other officers who were present during the relevant events to read my file notes and initial them if they agree that they are an accurate description of the words spoken and the events that occurred. I have read the notes at annexure A hereto and I believe them to be correct.

All three AFP officers agreed that the notes were an accurate record. All three had access to the notes in preparing their affidavits. I agree with counsel for Mr Whittaker that there are dangers in this procedure. It may make it too easy for a person to sign notes having an effect different from that of notes that the person would have made unaided by the recollections of others. Similarly, it is not possible to differentiate between the witness’s independent recollection, if any, and that which is revived by a reading of his or her own notes. I discuss this matter further at [328] ff below.

73. Senior Constable Mangkuwerdojo and Senior Constable Khier were working a shift together on 15 February 2008 in the AFP area in the Customs House at the airport when there was a radio broadcast from the AFP’s Australian Operations Coordination Centre (AOCC) of a PACE alert. The alert had been generated at the outbound primary line, International Terminal, Pier C. Senior Constable Mangkuwerdojo acknowledged the job and informed AOCC that he and Senior Constable Khier would attend.
74. Senior Constable Mangkuwerdojo stated in his affidavit (para 4):

I then accessed Police Real-time Online Management Information System (PROMIS) and read and printed the alert information. The details of an alert recorded for a departure prohibition order usually include the date the order was made, the effect of the order, the source of the power under which the order was made and the reason for the order. I took the print out of the alert with me to the primary line.
[My emphasis]

While PROMIS is an AFP system, Senior Constable Mangkuwerdojo explained that both the ACS and the AFP “own” the relevant part of the PACE Alert system and have access to it. There is in evidence a photocopy of the PACE “Close Match Alert Report”, the wording of which Senior Constable Mangkuwerdojo said he read at the time or shortly after receiving the job. The report was printed by a Customs officer in the Customs Control Room at 11:31 am (the time is noted on the document). It was then uploaded to the PACE system. Senior Constable Mangkuwerdojo accessed it there and printed it out. Senior Constable Mangkuwerdojo said he threw out the copy of the document he had printed out on that day. The copy produced to the court was apparently printed out later, Senior Constable Mangkuwerdojo having “scanned the disk – the original document on to the PROMIS system”. Although the sequence of events is not entirely clear, what is clear from his evidence is that he had a document on 15 February which had been printed out and which he threw away.

75. The Report contained a statement to the effect that a DPO was issued on 6 December 2006 in respect of Mr Whittaker preventing him from departing Australia, pursuant to s 72D of the Collection Act; that Mr Whittaker had a child support liability and had not made arrangements satisfactory to the Registrar for the liability to be wholly “disclosed” [sic – discharged]. The report gave the CSA outwards movement contact telephone number and stated the “date of issue” of the DPO as 6 December 2006.
76. Senior Constable Mangkuwerdojo said that he also saw a copy of the DPO itself on the PROMIS system but that he did not print it out. According to the notes that Senior Constable Mangkuwerdojo made on page 16 of his notebook, the PACE Alert number for the job was C147897C1, the job number was A15583, and the PROMIS number was p3738272.
77. Senior Constables Mangkuwerdojo and Khier arrived at the primary line at about 12 noon where they spoke to the supervisor, Mr De Bhaldraithe. They approached Mr Whittaker who was seated in one of the chairs landside. The chair was against a flat wall near the entry to the departure hall and not in a corner or in a room, according to Senior Constable Mangkuwerdojo. According to the latter, he explained that there was an alert having to do with outstanding child support payments that prevented Mr Whittaker from leaving Australia. The conversation included references to identification of Mr Whittaker, such as his driver’s licence, his address in Cairns, his wife’s name, date of birth and mobile telephone number, and the number of children he had. Senior Constable Mangkuwerdojo recorded the answers given by Mr Whittaker in his police notebook. According to him, Mr Whittaker denied having any child support obligation.
78. Senior Constable Mangkuwerdojo went to the Customs desk to make a telephone call to the PACE alert team in view of Mr Whittaker’s denial. That team advised him to contact the Child Support Team within the CSA and gave him a telephone number for that purpose. In the meanwhile Senior Constable Khier had remained with Mr Whittaker.
79. Before Senior Constable Mangkuwerdojo could contact the Child Support Team, Senior Constable Jarvis, who was the most senior of the three AFP officers, arrived at the Customs desk. Senior Constable Mangkuwerdojo explained to him that Mr Whittaker had denied having a child support obligation. He also told Senior Constable Jarvis that Mr Whittaker’s date of birth on the alert did not match that on his passport. It was left to Senior Constable Jarvis to speak to the CSA Child Support Team. Senior Constable Jarvis telephoned “Mell from Child Support Hobart”. This proved to be Michelle Arnold (see [146] below). She confirmed that Mr Whittaker, the subject of the DPO, had an address in Cairns (although she declined to reveal the precise address), and when Senior Constable Jarvis read out Mr Whittaker’s passport number she confirmed that that was the passport number of the Mr Whittaker the subject of the DPO, saying words to the effect of “that’s the right one”.
80. Senior Constables Mangkuwerdojo and Jarvis returned to where Mr Whittaker and Senior Constable Khier were located. Senior Constable Jarvis told Mr Whittaker that he could not fly that day.
81. According to the affidavits of Senior Constables Jarvis and Mangkuwerdojo, the former had a conversation with Mr Whittaker in the following terms (based on the notes in Senior Constable Mangkuwerdojo’s notebook) (the versions in the affidavits and in Senior Constable Mangkuwerdojo’s notes differ in slight and unimportant respects – the following is a composite account):

SC Jarvis: You can’t fly today
Mr Whittaker: On whose authority?

SC Jarvis: Child Support.
Mr Whittaker: What proof have you got?

SC Jarvis: I spoke with them on the telephone.
Mr Whittaker: Do you want to speak with a person I know who had $5,000 taken from his bank account?

SC Jarvis: Have you had dealings with Child Support before?
Mr Whittaker: No, I will be suing AFP. You ring [he gave a man’s name] on ... [he gave a Queensland telephone number] who was the person who had the funds withdrawn from. I am going to miss my business trip. It’s worth a couple of hundreds of thousands of dollars.

SC Jarvis: I cannot do anything about this.
Mr Whittaker: My business partner is in the lounge in Singapore waiting for me. This is bullshit.

Senior Constable Jarvis then handed Mr Whittaker his passport and boarding pass and said: “Sir, you have to leave the area now and sort these things out before making another trip.”

82. Senior Constable Mangkuwerdojo or Jarvis then gave the passenger departure card back to the ACS and advised the ACS officer that Mr Whittaker was not allowed to travel.
83. I find on the basis of the combined evidence of Senior Constables Mangkuwerdojo and Jarvis that they believed on reasonable grounds that a DPO was in force in respect of Mr Whittaker.
84. I accept that Senior Constable Jarvis conveyed to Mr Whittaker that it was by the authority of an order or direction of the CSA that he was not being permitted to fly, whether or not the expression “departure prohibition order” was used. The notebook bears this out. I reject Mr Whittaker’s evidence that he was not told, and had no idea of, the reason why he was not being permitted to depart (see below).
85. The affidavit evidence of Senior Constables Jarvis, Mangkuwerdojo and Khier is to the effect that they did not speak aggressively to Mr Whittaker. On the other hand, according to the above account of the conversation given by Senior Constables Mangkuwerdojo and Jarvis, Mr Whittaker spoke aggressively, or at least assertively, to them.
86. The notes written out by Senior Constable Mangkuwerdojo and signed by both Senior Constables Jarvis and Khier as being correct, are detailed and give an account of the conversation in the first person. Senior Constable Mangkuwerdojo wrote out the first page (page 16) “at the scene”; the three officers discussed the events as they walked back to the AFP office in the Customs House building at the airport. Once they arrived back, Senior Constable Mangkuwerdojo tried to put the account in chronological order (in pages 17, 18 and 19) with contributions from Senior Constables Jarvis and Khier.
87. I see no reason why I should not accept the notes in the notebook as a substantially accurate record of the conversation. I reject the account of the conversation given by Mr Whittaker to the extent that it differs. There is no reason why the AFP officers’ evidence that the cause of the “do not process” alert was ascertained to be a restraint imposed as a result of a child support liability and that this information was conveyed to Mr Whittaker, would be untruthful evidence. The evidence of the enquiry made of the CSA was detailed.
88. There is also in evidence a “Pass Alert Note” dated 15 February 2008, timed at 15:32 and entitled “Pace Alert Executed”. This note records that officers had attended at Pier C at about 12 noon. The note records that the name on the alert did not include Mr Whittaker’s second name, “Alan”, and that it recorded his date of birth as 24 April 1959 whereas his date of birth as shown in his passport was 23 April 1959. The note records that the AFP spoke to “Mell” from Child Support Hobart who confirmed Mr Whittaker’s identity based on his city of residence (Cairns) and passport number.
89. Another aspect of the events of Friday 15 February regarding which the evidence of Mr Whittaker and that of the Senior Constables differed concerns what happened when Mr Whittaker heard the boarding call for flight SQ 232 to Singapore. Mr Whittaker said that when his flight was called he said to the AFP officer who appeared to be in charge words to the effect of: “What is the problem? Can’t you hear, my flight is being called and unless you let me go now I will miss it” and “I have to board the flight because I am going to Malaysia for work commitments. It would cost me and my company a lot of money if I miss the flight.”
90. The Senior Constables do not deny that part of the conversation but their evidence is contradictory of the next part, in which, according to Mr Whittaker, after he asked what the problem was, he was told only that they were trying to find out what it was and that he was to remain seated and that if he tried to leave he would be “arrested.”
91. According to his affidavit, Mr Whittaker took his mobile phone out of his pocket (in oral testimony he said that it would probably have been in his laptop bag which is where he usually kept it) to call Mr Cox, the manager of Phillips, who was booked on the same flight, but one of the AFP officers said to him “turn of [sic] that phone immediately”, at which Mr Whittaker protested that he had to tell Mr Cox that he was not being allowed to board the plane. The AFP officers deny that any of them instructed Mr Whittaker not to use his mobile phone.
92. In para 34 of his affidavit Mr Whittaker gives an account of a conversation concerning the discrepancy of one day between his date of birth as recorded in his Queensland driver’s licence and that recorded in his passport. According to Mr Whittaker, the AFP officer who appeared to be in charge angrily inquired why there was the discrepancy and Mr Whittaker said that it was “a mistake by Queensland Transport”. However, in oral evidence Mr Whittaker corrected himself, saying that that part of the conversation did not occur on Friday 15 February, but occurred on Saturday 16 February. He also said in his affidavit that he had been aware at the time of the one day discrepancy and that he has since had the error in the records of Queensland Transport corrected.
93. I accept, as Mr Whittaker submits, that both the Customs and AFP officers with whom he dealt on 15 and 16 February 2008 were known by him and by them to stand in positions of officialdom or authority towards him. However, Mr Whittaker:
    • desired to leave the departure hall “airside”; and
    • was at all times free to leave the departure hall “landside”.

He was not physically confined. He would have it that the officers’ positions of authority had the effect of subjecting him to their control. It must be remembered, however, that any intending passenger, including Mr Whittaker, would prefer to wait until the issue that has arisen is explored and, if possible, resolved, rather than immediately leave the departure hall for the unrestricted area of the airport whence he or she had come. In effect, a passenger is “constrained” by his or her self interest to remain and speak with those in official positions. The passenger’s desire is to catch his or her flight, which, it can be assumed, is due to depart fairly soon. I infer that both in general, and in Mr Whittaker’s case in particular, that desire is strong and urgent.

94. There can be found in the cross-examination of the three AFP officers statements which, taken in isolation, might be relied on to support a conclusion that Mr Whittaker was being “detained” by them. For example, Senior Constable Khier agreed that Senior Constable Jarvis may well have said to Mr Whittaker “I am directing you to sit down where you are in that chair and wait” and that Mr Whittaker was not to leave until their “police work” had finished. In passing, it may be noted that Senior Constable Khier was the most junior of the three AFP officers and was not directly dealing with Mr Whittaker. Understood in the context of the whole of the testimony given by the three AFP officers and of all of the circumstances including Mr Whittaker’s desire to travel, such statements do not persuade me to think that Mr Whittaker was being restrained or detained against his will. Senior Constable Khier himself also said that if a person in the restricted area wanted to leave, he or she could do so.
95. I do not think that Mr Whittaker was given any reason to believe that he was being arrested or detained against his will. I accept that he was given to understand that if he wished to travel, he could not pass through the departure hall until the outstanding issue was resolved. It was not, however, reasonable for him to think, if he did think, that he could not have decided to abandon his trip and to return “landside” out of the departure hall. If Mr Whittaker believed that he was not free to leave until the questioning of him by the AFP officers was complete, this did not constitute an imprisonment of him for the purposes of the tort of false imprisonment (see [177] ff below).

Mr Whittaker’s visit to the “Passport Office” in the Sydney CBD

96. In paras 40-41 of his affidavit, Mr Whittaker states that after collecting his luggage at the Singapore Airlines counter, booking a flight for the following day, arranging to be collected from the airport and securing accommodation in Sydney for the Friday night, he left the airport at approximately 1:30 pm “and went immediately to the Passport Office in Sydney to attempt to find out what the problem was with [his] passport”. He said that he was served at the counter there shortly after 2:00 pm and was told that there was no problem with his passport. Mr Whittaker’s affidavit then becomes confusing. After stating (para 42) that the officer offered to contact the AFP to ascertain what the source of the problem was, his affidavit continues:
    42. ... The Officer called the Federal Police stationed in the building to come to the Passport Office. She said his name was Nigel Jarvis.
        
    43. I then took a seat and waited for Federal Police Officer Nigel Jarvis to arrive. He arrived at approximately five minutes before closing time, which was to the best of my recollection 5:00 pm. Officer Jarvis then stated to me, “I made an enquiry before coming down. You have to contact the Child Support Agency to sort out the problem.” I asked him, “What problem has to be resolved?” He stated, “The information I have given you was all I know[”]. He then wrote his name and number on [a document that had been given to Mr Whittaker by the Officer at the Passport Office and which is in evidence as Exhibit MAW 12].
        
    44. He then gave me a yellow Post-it note with Child Support Agency written on it along with two telephone numbers. He then looked at his watch and stated, “It is too late to find out now. I may not be able to find out anyway.”
        
97. This evidence is remarkable. It has Senior Constable Jarvis, who, like Senior Constables Mangkuwerdojo and Khier, gave evidence that at all relevant times he was working at the Sydney International Airport at Mascot, now attending at a “Passport Office in Sydney” to which Mr Whittaker went after leaving the airport. It has a Passport officer telling Mr Whittaker that AFP officer Jarvis was “stationed” in the Passport Office building in the City and “Federal Police Officer” Jarvis telling Mr Whittaker that he had come “down” to the Passport Office. In his affidavit Senior Constable Jarvis dealt with this evidence of Mr Whittaker’s as follows (para 18):

... I have no specific knowledge of the location of any passport office at the airport or elsewhere in Sydney, New South Wales. I have only ever been stationed at Sydney airport and never in a Passport office. The only time I spoke with Mr Whittaker was at Sydney Airport shortly after 12:00 noon on 15 February 2008 in relation to him not being allowed to fly on flight SQ232 on that day. I have never spoken to him again. I most certainly did not talk to him at a Passport office later that day as claimed in his affidavit filed 18 June 2009.

98. Faced with this evidence, in his affidavit of 8 September 2009 Mr Whittaker changed his account to say that it was not Senior Constable Jarvis but a different officer who spoke to him at the Passport Office in the Sydney CBD. In his oral evidence Mr Whittaker explained that that officer wrote down the name “Jarvis” as the name of the AFP officer in charge, on a piece of paper, which he handed to Mr Whittaker. Mr Whittaker said that he must have erroneously inferred that the name “Jarvis” on the piece of paper was the name of the officer who had spoken to him.
99. In oral testimony Mr Whittaker said that he had a recollection of the officer’s having mentioned “Stephen Jarvis” as the name of the AFP officer in charge , but in fact the correct name, and the name written on the piece of paper that is exhibit MAW 12, was “Nigel Jarvis”.
100. Mr Whittaker’s evidence of what transpired at the Passports Office in the Sydney CBD reflects poorly on the reliability of his evidence. It may well be that aided by Senior Constable Jarvis’s affidavit and his own cross-examination, Mr Whittaker did finally arrive at a correct account. What is particularly disturbing is his refusal to admit that his recollection of the events had been “hazy” and that he had been trying to piece things together as best he could. Indeed, he insisted that he had “quite a good recollection”. My assessment is that Mr Whittaker’s account is quite unreliable and that he did indeed change his evidence from time to time in the present respect and others, to accommodate other incontrovertible evidence. He was dismissive when the incorrectness of his own evidence was demonstrated, maintaining that “the events [were] correct” and were “the same events, really” and conceding only grudgingly a “mistake” in his original account.

Mr Whittaker’s dealings with Ms Pitt of the AGS

101. The next matter to be addressed is a conversation that Mr Whittaker alleges he had with Ms Pitt, the Director of the Sydney Office of the AGS, on Friday 15 February 2008. According to para 46 of his affidavit, he obtained Ms Pitt’s telephone number on that day and asked her to find out what the problem was with his passport, telling her that he had been told that it related to the CSA. He suggested to her that she might be able to get the number of Matt Miller of the CSA (apparently Mr Miller was the Registrar at the time) from the Government Directory.
102. Ms Pitt, on the other hand, is quite clear that she did not speak to Mr Whittaker until Saturday 16 February 2008. She concedes that he may have phoned her number on the evening of 15 February and left a message. However, she is clear that she did not access that message until around 10:00am on 16 February 2008. In cross examination, Mr Whittaker said he believed that Ms Pitt was at the number he phoned on the Friday evening, that she answered it and that they had a conversation. He said in the witness box that he told her how to get Matt Miller’s telephone number. Mr Whittaker said that Ms Pitt told him that she was going out or doing something and did not have time to speak.
103. There is therefore a conflict between the testimony of Mr Whittaker and that of Ms Pitt as to whether or not they conversed at all on the Friday.
104. Ms Pitt made notes of the message that was left on her mobile phone and which she said she accessed at 10:00 am on Saturday 16 February. According to her notes, Mr Whittaker said that he was telephoning in relation to proceedings that had to be brought that day (Saturday) in the Federal Court against the Minister for Immigration, the Minister for Justice and the Minister for Health, and he asked that she phone him back urgently as he had to leave the country that day (Saturday) at 4:00 pm. He left a mobile telephone number. In cross examination Mr Whittaker confirmed that the number recorded in Ms Pitt’s notes was indeed that of his mobile telephone.
105. According to Ms Pitt’s notes, she assumed that Mr Whittaker was a client of the AGS. She phoned him back at about 10.30 am. Mr Whittaker agreed that she phoned him at about that time. It then became clear to Ms Pitt that Mr Whittaker was not a client but was a potential “FC” (I infer that this means Federal Court) applicant. Ms Pitt’s notes recorded that Mr Whittaker told her that he had tried to leave Australia the preceding day, but that “Immigration” and the AFP had prevented him leaving as “he had a departure prohibition order against him”. It will be appreciated that this was at a time when, according to his case as ultimately put, Mr Whittaker did not know that a DPO was the cause of his troubles.
106. According to Ms Pitt’s notes, Mr Whittaker asserted that he did not have a child support debt and was not going to pay anything. He said that he would approach the Court on the Saturday and was ringing Ms Pitt about that. He said that he was not threatening her, but that he had a business to go to in Malaysia and that if he did not make the flight, the business could not go ahead and there would be a substantial loss.
107. Mr Whittaker denied referring to a DPO. His evidence was that all that he knew at that time was that the AFP officers had said at the very end of their conversation with him at the airport on the Friday that they thought the cause of the alert was a child support problem, and that the officer at the Passports Office on the Friday afternoon had told him that he had to ring “Child Support”. He said that that was the reason why he had telephoned Ms Pitt (again, it will be noted, avoiding contact with the CSA).
108. According to Ms Pitt’s notes, she replied that given that it was the weekend and that as far as she knew the AGS did not have instructions, it might be very difficult for her to get instructions. She asked if Mr Whittaker had proceedings that the AGS had handled in Sydney. He replied that he did not and that he was down from Queensland.
109. Ms Pitt said that she would make enquiries as to whether she could get some instructions but was not confident or optimistic that she would be able to do so on the Saturday. She said that she would get back to Mr Whittaker later that day.
110. According to Ms Pitt’s notes, Mr Whittaker said that he had contacted the Federal Court which had informed him that even if a Judge could be contacted for a matter like his, an ex parte application seemed inappropriate. He said that he was therefore hoping that Ms Pitt could arrange for someone to appear. She said that this depended on whether or not she could get instructions.
111. Ms Pitt’s notes record enquiries that she made and telephone messages that she left extending from 10:30 am to 3:59 pm (the latter was recorded at 3:00 pm but should have been 3:59 pm according to a correction made by Ms Pitt in oral evidence). One of her notes was of a message that Mr Whittaker left at 2:45 pm to the effect that he was on his way to the airport and hoped that she had had “the order” lifted so that he could leave the country. Mr Whittaker denies saying this, but I accept the reliability of Ms Pitt’s note.
112. At 3:59 pm, according to her notes Ms Pitt spoke to Mr Whittaker to advise him that she had not been able to progress the matter because it was the weekend and the time frame was too short. Mr Whittaker replied that she should contact Matt Miller, the head of the CSA, as he could “lift the order”. Mr Whittaker denies saying those words. Ms Pitt replied that Mr Miller would need to be briefed on the matter by CSA officers and that it was apparent that this was not possible in the time available. Mr Whittaker said that it was not her fault but that the matter would probably have to go further. She said that it would be easier to get instructions from AGS’s clients in business hours the following week and he said that he would go to “Immigration” at the airport to see if he could be let through. Ms Pitt said that she really could not do anything further that day (Saturday).
113. In his affidavit, Mr Whittaker states that it was while he was waiting for a Singapore Airlines employee to check if the “problem with [his] passport had been cleared”, that Ms Pitt telephoned him. He said that she told him she had not been able to find out what the problem was. Ms Pitt denies saying that. It will be recalled that her evidence was that Mr Whittaker told her what the problem was, namely, the DPO. Moreover, as noted above, her notes record that Mr Whittaker had left a message for her at about 2:45 pm that day stating that he was on his way to the airport and hoped that she had had “the order” lifted so that he could leave. In cross examination Mr Whittaker modified his evidence by saying that Ms Pitt had said that she could not “get instructions”, as if the difference between this and a statement that she had been unable to find out what Mr Whittaker’s problem was, was a distinction of no consequence.
114. Ms Pitt’s notes are detailed and show all the signs of having been carefully made. There is no reason to doubt their accuracy. The only suggestion that Mr Whittaker could make is that she must have been mistaken. He said: “[s]he might have assumed it was that... [s]he might have assumed I mentioned departure prohibition order”. I have no hesitation in accepting that on the Saturday at about 10:30 am and again about 2:45 pm, Mr Whittaker referred to the DPO.
115. Even if, contrary to my finding, Mr Whittaker did not use the expression “departure prohibition order”, the result would be the same. He knew and said that he was prevented from leaving by an order or direction made by the Registrar on account of his alleged outstanding child support liability.

Conversation with Customs officers on Saturday 16 February 2008

116. Mr Whittaker’s version of the events at Passport Control on Saturday 16 February is, if anything, recounted in rather more extreme terms in his affidavit of 18 June than the events of the preceding day. Again, Mr Whittaker said that the Customs officer at the console (who proved to be Samantha Blair) told him that the Federal Police would be coming. Ms Blair said in her affidavit that usually she would not specify who will come and talk to a passenger but that in her experience in the case of a “do not process” it is indeed the AFP who attend. In cross-examination, however, Ms Blair accepted counsel’s suggestion that she told Mr Whittaker that the AFP would be coming and at that time handed his documents back to him.
117. Ms Blair has some recollection of what happened following the appearance of the “do not process” alert on her screen. She recalls telling Mr Whittaker that she would have to speak to her supervisor and that Mr Whittaker appeared to become annoyed about this. She recalls recounting to her supervisor that he had tried to travel the preceding day but had been stopped; that he had fixed the problem but that it had still come up as an alert; and that there was a one day discrepancy between the date of birth on his passport and that on the alert. Ms Blair said that she tried to “un-match” the alert but that it “matched itself”, and that Mr Whittaker said that if he did not get onto the flight he would “sue us”.
118. Ms Blair said that she referred Mr Whittaker’s “do not process” on to a bravo but could not recall who that was.
119. Mr Le Miere was rostered on duty in the Customs Control room on 16 February 2008 but had no recollection of the events of that day involving Mr Whittaker. His affidavit gives an account of general practice and of his own practice when an alert is activated at the outbound primary line. Mr Le Miere states that if there is a complete match or the primary line officer decides that there is a match, a message is sent electronically to the Customs Control room. Mr Le Miere states that his practice is to check the details of the alert against the passenger’s details and then to contact the bravo and let him or her know what to do. If there is a complete match or a close match he tells the bravo to keep the passenger landside until he has spoken to the AFP Operations Coordination Centre (AOCC) in Canberra. He then calls the PACE response team, who are part of the AOCC, to advise them of the alert activation, that there is a passenger waiting to leave, and of any other relevant information that he may have from the bravo. He states that the AOCC takes care of the matter from that point.

Conversation with AFP officers on Saturday 16 February 2008

120. Mr Whittaker’s Singapore Airlines flight SQ 222 on Saturday 16 February 2008 was due to board at 3:55 pm.
121. According to Mr Whittaker, the Customs officer at the console told him that the AFP had been notified and that he had to wait for them. The evidence of Ms Blair is that she asked Mr Whittaker to “stand aside” and “directed him where to wait”. In her affidavit she said that she suggested to him where he could wait (para 15).
122. Mr Whittaker says that on this occasion no less than seven AFP officers attended upon him. I accept the evidence of Federal Agents Lokhee and Mackay that they were the only two AFP agents who attended upon Mr Whittaker. When this was put to Mr Whittaker in cross examination he said:

No. There were a whole bunch of police came through. I think they came through like vultures coming in for the kill and then a bit of a chat and then most of them left and only two of them stayed.

123. Shortly afterwards in his cross examination, Mr Whittaker modified his evidence. After insisting that it was not just Senior Constables Lokhee and Mackay and that he “saw police officers everywhere”, he accepted that the officers other than the two mentioned did not actually come to him or do anything in respect of him. There followed this passage:

No, but I had already just about had a heart attack when they all came through. I mean, I could see the way they were all looking.

[Counsel:] They didn’t do anything to you? –

Well, they wanted to, by the looks on their faces. I think they were looking to drum a bit of business or something.

[Counsel:] Yes, that was your perception? –

That was my perception, yes.

124. Mr Whittaker said that one of the AFP officers said that he may be arrested and must not leave. According to Mr Whittaker, he told the officers that he had been to the Passport Office “in the city” and been told by that Office that there was no reason that they could see why he would not be allowed to leave. On Mr Whittaker’s own account, the officer at the Passport Office had said only that that officer could see no reason why he was not allowed to leave in that there was no problem with his passport. The DPO had nothing to do with his passport. Mr Whittaker well knew that his problem was a DPO and the CSA, which were irrelevant to the Passports Office.
125. Again Mr Whittaker’s evidence is to the effect that the AFP officers were aggressive. The evidence of Federal Agents Lokhee and Mackay is otherwise. In para 58 of his affidavit, Mr Whittaker said that he feared that as well as being arrested and forcibly restrained, he would be shot or placed in prison if he did not obey the AFP officers’ directions and tried to board the plane or leave the area.
126. It was put to Mr Whittaker that on the preceding day he had been allowed to leave the airport and he was asked why he had feared anything different on the Saturday, to which he replied:

Well, probably by the way Constable Lokhee came through the door.

[Counsel:] So that was it, the way he came through the door...? –

He was on a mission. I had been there the day before and he made a point of raising that; that they were going to nail me if they could.

127. I accept that Mr Whittaker understood, and that it was the fact, that if he attempted to force his way through in order to board the plane he would be forcibly prevented by AFP officers from doing so. However, I do not accept that he feared any untoward consequences if he should decide to leave the departure hall for the unrestricted public (landside) parts of the airport. Nor do I think that he had a fear of being shot or imprisoned. If, contrary to my view, Mr Whittaker did hold the fears he claimed, he held them irrationally and with no reasonable basis in circumstances in the real world, including the circumstance of the conduct of the Customs and AFP officers.
128. It was put to Mr Whittaker that either Federal Agent Lokhee or Mackay referred to an order being in place prohibiting him from leaving the country, but he disagreed. He insisted too that they said to him “You’re not travelling. Get out of here or you’re going to be arrested”. When it was put to him that this evidence was false, Mr Whittaker replied:

They certainly threatened me with arrest, and Constable Lokhee was very – he frightened me. I was certain he was going to arrest me.

When senior counsel reminded Mr Whittaker that Federal Agent Lokhee did not in fact arrest him, Mr Whittaker said:

Well, he was looking to. He wanted to arrest me. That’s what I felt.

129. Mr Whittaker said that the only identification of the cause of his problem had occurred during his conversation with the AFP officers on the Friday, when the words “child support” were used. Mr Whittaker said that the words “child support” were “thrown in as a token excuse on the first day. ‘Maybe it’s child support. Check with them’”.
130. In an affidavit made on 25 February 2008 but not read on the hearing (paras 24-25), Mr Whittaker deposed that he “informed the AFP officers and the Immigration officer present” that to his knowledge there was “no order of that kind against [him]” and that he told the AFP officers that he “would like to see a copy of the order”. Mr Whittaker has the officer saying “No, the order is none of our business”. These references to the DPO were inconsistent with Mr Whittaker’s ultimate position on the hearing that he did not know of the DPO at the time (on Saturday afternoon 16 February 2008). In the witness box Mr Whittaker attributed his affidavit account of the conversation to “very careless interpretation” and said that he was “at a loss to provide any other explanation”. It will be noted that the affidavit was made only nine days after the event.
131. Federal Agents Lockhee and Mackay made affidavits, having refreshed their memories from notes made in PROMIS by the AOCC and by Federal Agent Mackay on 16 February 2008 at 5:38:42 pm, and, in the case of Federal Agent Lockhee, also from notes he made in his notebook.
132. Briefly, their evidence was to the effect that they were in the AFP office in the Customs building at the airport when another AFP officer, Federal Agent Hinds, said that there was a “do not process” child support issue at the Customs barrier at “International Terminal Charlie” (ITC). Federal Agent Lockhee said that his practice is to check the nature of an order through PROMIS or from the AOCC. He said that either he or Federal Agent Mackay found out that there was a CSA DPO and a “pass alert” for Mr Whittaker
133. The two Federal Agents went to the departure hall where they conversed with Mr Whittaker who was sitting down alone there. By that time he had been offloaded and his flight had departed.
134. Federal Agent Lockhee or Federal Agent Mackay said to Mr Whittaker words to the effect that there was in place an order preventing him from departing the country. As referred to at [92] above, there was a discrepancy as to Mr Whittaker’s date of birth as recorded on his driver’s licence and in his passport. Either Federal Agent Lockhee or Federal Agent Mackay made inquiries of the AOCC to verify the date of birth on the alert. Mr Whittaker himself gave an explanation for the discrepancy. Federal Agent Lockhee said that he formed the view that Mr Whittaker “was the person referred to in the order” (para 15). After Mr Whittaker’s passport, boarding pass and driver’s licence were photocopied the originals were returned to him. He was referred to a Singapore Airlines official to collect his baggage.
135. Federal Agent Mackay’s evidence was generally similar to that of Federal Agent Lockhee. I accept that neither officer was aggressive to Mr Whittaker or intimidated him.
136. In my view Federal Agents Lockhee and Mackay believed on reasonable grounds that a DPO was in force in respect of Mr Whittaker.

Specific attacks on Mr Whittaker’s credit

137. In their written submissions the respondents make several cogent attacks on Mr Whittaker’s credit. I have already touched on some of them above and will not repeat what I have said.
138. The first, and perhaps the chief attack, concerns the allegation that Mr Whittaker ultimately made that he was never made aware of the reason why he was not permitted to catch either flight. His final position was that the AFP officers and others who dealt with him knew nothing of the DPO and were unable to tell him why he was not permitted to leave. His ultimate evidence was that they could only guess that the reason had something to do with child custody or child support but did not really know. In oral evidence he said that he did not learn about the DPO until he “figured it out” on the evening of Saturday 16 February 2008 when he spoke to people who knew a little about child support legislation.
139. His case, therefore, was that on the basis that he had figured this out on the Saturday night, he commenced the proceeding in this Court on Monday 18 February 2008 seeking, among other things, a declaration that there were no reasonable grounds for the making of the DPO and that it was not “desirable” that a DPO under s 72D of the Collection Act be made (see s 72D(1)(d) set out at [16] above). As well, he sought an order that the DPO be revoked. The respondents submit that I should infer from the rather lengthy and detailed nature of the claims for relief made in the application filed on Monday 18 February 2008, that Mr Whittaker had knowledge of the DPO prior to, and otherwise than by, figuring things out on the Saturday night. I do not draw the inference. In the first place, most of the relief claimed did not relate to the DPO specifically. Second, it is possible that Mr Whittaker’s solicitor independently applied himself assiduously on the Sunday and Monday to ascertain the facts and prepare the form of application.
140. There are, however, other indications that Mr Whittaker well knew right from the start on Friday 15 February 2008 that his problem was an order made by the CSA.
141. First, his affidavit of Monday 18 February 2008, which was also not read, said that the police had advised him on 15 February 2008 that he was the subject of a DPO. Mr Whittaker explained that he instructed his solicitor at the time, Robert Christie, that he had not been told about the DPO. He suggested that the reason why his affidavit stated otherwise must have been because Mr Christie was very tired (“I think he was still an apprentice solicitor. He was studying. He was virtually falling asleep while we were doing it, he was that tired, and I wasn’t much better”). Mr Whittaker elaborated, saying that Mr Christie said “they must have said this to you, must have told you”, to which Mr Whittaker replied that he was certain that they did not. The explanation at this point, therefore, seems to be that Mr Christie suggested what must have happened at the airport and through fatigue did not take on board Mr Whittaker’s repudiation of the suggestion. Mr Whittaker said that he did read through his affidavit of 18 February 2008 before signing it, but through a “careless mistake”, a “proofreading error”, did not pick up the error.
142. In his affidavit of 8 September 2009 Mr Whittaker addressed the “error” further. He said in that affidavit that he had become aware of the error when preparing his affidavit of 18 June 2009. When asked why, then, he had not corrected it in his affidavit of 18 June 2009, of 30 July 2009 or of 4 August 2009, Mr Whittaker said that his understanding was that the affidavit of 18 February 2008 was not going to be relied on in evidence.
143. In re-examination he added a new dimension to his explanation. This was that when he was preparing his affidavit of 18 February 2008, “friends or acquaintances” made suggestions, such as “Remember this. Did this happen?” and “They must have said this” and “They must have said these words”. The blame now seems to move from Mr Christie to friends or acquaintances for making suggestions that found their way into the affidavit Later, he returned to blame Mr Christie, saying “Mr Christie was very tired; he was falling asleep on his feet, and the couple of times that I worked with him, he was the same”.
144. Second, on 25 February 2008 Mr Whittaker made an affidavit in which he purported to set out the words that had been used by AFP officers telling him that there was a DPO against him. He stated that the AFP officer said: “You are not going anywhere. You are not permitted to board the flight with Singapore Airlines because there is a Departure Prohibition Order issued by the Child Support Registrar against you”. In cross-examination Mr Whittaker’s initial explanation was that this must have been copied from his earlier affidavit, but when it was pointed out to him that the later affidavit purported to quote directly whereas the earlier one did not, he could only say that it was a mistake and that it had not been a good time for him.
145. Third, the various AFP officers gave evidence that they knew either before they arrived in the departure hall or, in the case of Senior Constable Jarvis, soon afterwards, that Mr Whittaker was unable to leave because he was the subject of a DPO or, more generally, because of a CSA order or direction preventing him from departing on account of his outstanding child support liability. See, in particular, [74]-[79] and [131]-[136] above. In cross-examination, the various officers adhered to that evidence and I do not accept that they concocted a false story. In the light of this evidence, Mr Whittaker’s own evidence that they told him that they did not know what had triggered the “do not process” alert is improbable, and it is likely that they would have told Mr Whittaker what they knew of the reason for the “do not process” alert.
146. Fourth, as noted at [74]-[75] above, the PACE Close Match Alert Report of 15 February 2008 refers expressly to the DPO as having been “issued” on 6 December 2006, pursuant to s 72D of the Collection Act, and Mr Whittaker’s not having made arrangements satisfactory to the Registrar for the child support liability to be wholly discharged. Senior Constable Mangkuwerdojo testified that he had the original version of this document with him at the time of his attendance at the departure hall. He identified his handwriting at the foot of the page “Supervisor Michelle”. This is corroborated by Exhibit A3 which was a “Pass Alert Note” prepared by Senior Constable Mangkuwerdojo at 15:32 on 15 February 2008, and which states “Police spoke to Mell, from the Child Support (HOBART)”. Exhibit R3 comprises a series of emails, all on 15 February 2008, between “Michelle Arnold”, a team leader of the DPO Unit, Hobart, and David Badke of the CSA. The emails refer to contact from the AFP concerning the stoppage of Mr Whittaker at the airport in Sydney. The emails suggest that Mr Whittaker was given a 131 phone number for him to call. The telephone number on Exhibit R2 in handwriting and the number in the email are identical – number 131272. I infer that the 131 number given to Mr Whittaker was a CSA DPO number. Exhibit R2 also refers to “Mell Hobart” – I infer a reference to Michelle Arnold.
147. All of this evidence strongly suggests that on the Friday, the AFP officers were aware, as they said they were, that the cause of Mr Whittaker’s troubles was a DPO. There is no reason why they would have told Mr Whittaker that they did not know why he had been stopped or that the reason might have something to do with child custody. I accept their evidence that they did tell him that the problem was the DPO and I reject Mr Whittaker’s evidence to the contrary.
148. Fifth, I accept as accurate Ms Pitt’s file notes to which I referred earlier, recording that Mr Whittaker had referred to the DPO three times in the course of Saturday 16 February (see [101]-[115] above).
149. Mr Whittaker’s visit to the “Passport Office” in the city does not undermine my conclusion that he already knew that his problem was a DPO. His visit to that office, like his telephoning of Ms Pitt of the AGS, was consistent with an attempt by him to overcome his problem without having to deal with CSA officers.
150. The fruitless attempts of CSA officer Badke to speak with Mr Whittaker on Friday 15 February 2008 demonstrate Mr Whittaker’s emotional antipathy to CSA officers and a motivation for his dealing with the Passports Office and Ms Pitt rather that with CSA officers.
151. Mr Badke was employed as a litigation officer in the CSA and had the care and conduct of Mr Whittaker’s matter. According to Mr Badke, on Friday 15 February 2008 at 10:52 am he received an internal email alert as a result of which he telephoned Mr Whittaker at 14:48 that day. Mr Badke told Mr Whittaker that he wanted to talk with him about some issues that Mr Whittaker had in relation to leaving the country. Mr Whittaker replied that Mr Badke was not the person he needed and that Mr Badke must get his boss to telephone Mr Whittaker. According to Mr Badke, Mr Whittaker said that if the matter was not sorted out that day, they would be in court that night. Mr Whittaker hung up.
152. Mr Badke said that he telephoned Mr Whittaker again at 14:49 on the same day. According to Mr Badke Mr Whittaker said that it was a joke that Mr Badke should telephone him, that Mr Badke did not need to speak to him in order to resolve the issue, and that Mr Badke must simply act. Again Mr Whittaker “terminated the call”.
153. At 14:51 the same day, Mr Badke telephoned Mr Whittaker a third time, but Mr Whittaker told him to go away and terminated the call.
154. Mr Badke sent a text message to Mr Whittaker on his mobile telephone urging him to contact Mr Badke on a certain number which he gave.
155. I accept that these conversations took place in accordance with Mr Badke’s affidavit and that Mr Whittaker had a deeply felt resentment towards the CSA and wished to avoid dealing with it. In fact, although Mr Whittaker’s account is different from that given by Mr Badke, one of the few concessions that Mr Whittaker made is found in the following passage:

I don’t like Mr Badke personally, and I don’t talk to him. Simple as that. So I hung up... as politely as I could.

[Counsel:] Are you saying you disliked him at the time? On 15 February you disliked him? –

Well, because he works for the Child Support Registrar, I guess.

[Counsel:] So it is guilt by association, as it were? –

Pretty much. They have some good people.

[Counsel:] Well, let me suggest to you that Mr Badke’s version of the conversations are accurate, and not your version? –

I didn’t engage in conversation with him. The first time he rang, I was being served.

Later Mr Whittaker said of Mr Badke: “I didn’t like the guy and didn’t want to talk to him.”

156. I do not find it necessary to discuss the differences between Mr Badke’s and Mr Whittaker’s accounts of Mr Badke’s telephone calls to Mr Whittaker. Their content is unimportant, although I see no reason not to accept Mr Badke’s version. What is important is that Mr Whittaker knew that Mr Badke wanted to speak to him about the problem that his outstanding child support liability (a liability that Mr Whittaker, in his account, denied) posed for Mr Whittaker at the airport, but Mr Whittaker would have nothing to do with Mr Badke because of his deep rooted antipathy to the CSA.
157. Perhaps the passage that reveals this most forcefully and explains Mr Whittaker’s preference for communicating with the Passports Office and Ms Pitt is the following:

[Counsel:] Mr Badke wanted to talk to you to fix up the problem and come to an arrangement? –

Mr Badke always wanted to talk to me and I didn’t want to talk to him.

[Counsel:] So you accept that you could have chosen to speak to him and you could have chosen to enter into an arrangement to pay the child support liability? –

Except when I talk to people like him I get physically sick. My muscles tighten up in my back. It affects me, so I can’t talk to them, so I choose to not talk to employees of the Child Support Agency. That’s why I got Megan Pitt to ring. They make me physically sick.

158. I have no doubt that Mr Whittaker was told of the DPO from the outset on Friday 15 February and that either he has rationalised events subsequently under the influence of his strong animosity towards the CSA, or, under that same influence, has sought to mislead the Court. Either way, he is a witness on whose evidence I do not rely where it is in conflict with other evidence.
159. There were yet further matters adverse to Mr Whittaker’s credit. The cross examination of Mr Whittaker on a financial report relating to the affairs of Rotary, that was said to have been prepared in connection with an application for finance, gave cause for concern. The financial statement showed the amount of income and expenses for the first period to which it related (the year ended 30 June 2008) to be identical to the cent ($902,288.19). There was no adequate explanation as to how Rotary came to have $296,940.68 at the bank at the end of the year if, as the financial statement said, all of the income was expended. Mr Whittaker’s explanation that his wages were lent back to the company, or that he made some other loan to the company, could not itself be an explanation.
160. Moreover, Mr Whittaker’s explanation that he returned his salary for the following period to the company was inconsistent with the report, because there was no increase in the amount of his loan account as between the two periods.
161. In re-examination, Mr Whittaker said that he spent some of the money on a house which he swiftly sold, but this remarkable change in his evidence still did not explain the apparent contradictions in the accounts.
162. While Mr Whittaker said that Rotary paid him salary or wages, there were no payslips and no superannuation or tax deductions. The financial report is of doubtful accuracy. The apparent non-compliance with normal industrial and taxation laws raises a doubt about Mr Whittaker’s evidence.
163. I have referred earlier to a number of other inconsistencies or problems affecting Mr Whittaker’s evidence, such as his initial claim that he spoke to Senior Constable Jarvis at the Passports Office in the city. It will be recalled that Senior Constable Jarvis denied this strongly and unequivocally in his affidavit. Mr Whittaker did not admit his error in his affidavit in response. Only after the Senior Constable had given evidence did Mr Whittaker acknowledge that he had been wrong. Notwithstanding this rather gross error, in cross examination Mr Whittaker would not concede that his memory was faulty, stating only that his original account of the events was a “mistake”.
164. I also referred earlier to Mr Whittaker’s change of position as to the request for his driver’s licence. His affidavit evidence given in June 2009 was that the AFP officer who appeared to be in charge had asked him for the licence on Friday 15 February 2008 and that when he had provided it, the officer had got angry with him because of the discrepancy in his date of birth. Accordingly, in his cross-examination of Senior Constable Jarvis on this matter, counsel for Mr Whittaker put it to the Senior Constable that he had got angry but the latter disagreed. In the course of his own cross-examination, Mr Whittaker changed his evidence to say that he had not been asked for his licence at all on Friday 15 February 2008 (Senior Constable Jarvis was involved only on that date). Yet again Mr Whittaker would not accept that his memory was flawed, saying that he had simply made a “mistake”.
165. Mr Whittaker’s evidence that he was fearful of the police is inconsistent with his own evidence that he made a sarcastic remark to them about not having a child in his laptop bag, and his threat of bringing legal proceedings. In my opinion Mr Whittaker was more than equal to the task of standing up for what he perceived to be his rights and of countering assertions made by persons in authority.
166. There were many other problems in Mr Whittaker’s evidence, such as a statement in his affidavit made on 25 February 2008 that he was told to “leave the Immigration zone immediately”, and his other evidence that he was told “to leave the airport immediately”; his oral evidence of a threat made on 15 February 2008 that he would be arrested if he did not leave the airport immediately which was not mentioned in his affidavit evidence (his affidavit did mention that on the following day, 16 February 2008, an AFP officer said to him: “You may be arrested. Do not leave the country”); and his evidence that he had never been asked by the Registrar or the Commissioner of Taxation to lodge an income tax return during the period 1 July 1994 to 28 February 2007, which he conceded was incorrect.
167. Finally, I have also previously referred to the element of exaggeration in Mr Whittaker’s evidence. This was pervasive and indicated a propensity to seek to advance his own cause.
168. Taking Mr Whittaker’s evidence together and as a whole, I do not have confidence in it. He seems to be a victim of his own obsession. He has often changed his evidence in an attempt to avoid difficulties. He also took an adversarial stance throughout. He was dismissive of discrepancies in his own evidence and seemed to consider them minor distractions from the “message” that he was anxious to convey.
169. I not mean to suggest that the entirety of Mr Whittaker’s evidence is to be rejected: it is, however, to be treated with great caution, and, generally speaking, the evidence of others is to be preferred in any case of conflict.
170. On the whole, the evidence given by the ACS and AFP officers was straightforward and acceptable. Of course, they could not be expected to remember the detail of one case among the many with which they have had to deal and which had occurred so long before they were called upon to recall it. In her affidavit, Federal Agent Mackay said that during her first four months of working at the airport as a Federal Agent, she responded to at least 40 PACE alerts, many of which were for passengers the subject of DPOs (para 4).
171. Only two aspects of their evidence call for mention. First, there were the notes of Senior Constable Mangkuwerdojo in which Senior Constables Jarvis and Khier participated. I do have some concern over the propriety of what was done. It would have been preferable if they had, independently of each other, made their own notes of what they had seen and heard. Bearing in mind, however, that all three participated so soon after the event when the circumstances were fresh in their minds, my concern is somewhat reduced: see also [328] ff below.
172. The other matter that calls for comment is a statement by Mr Le Miere that if a Customs officer gave a person a direction, he would expect the person to adhere to it. I accept the submission of senior counsel for the respondents that this evidence is properly to be understood as meaning that Mr Le Miere would expect the person as a matter of fact to adhere to the direction, not as evidence that Mr Le Miere would consider the person to be obliged to do so or even that the person would consider that he or she was obliged to do so.
173. The passage in question was as follows:

His Honour: --- There are so many terms that are used. You understand you are being asked this question as a matter of practice?
Sure.

It may be necessary for Mr King to – do you recall the question?

Yes, I do. He will be free to leave the area, is that what you are asking? If he ---

Mr King: He had been directed by the officer to stay and await the attendance of police officers to determine what to do in relation to the “Do Not Process”?

Yes, okay

He would be expected to stay there?

Expected, yes. Not obliged.

Well, what do you mean by not obliged?

Well, he doesn’t have to stay there.

What, you say he could disobey a direction from a Customs officer?

No, it is just a direction to stay in the hall, yes, but no, he wouldn’t be formally detained. No, basically.

The normal expectation would be where a Customs officer gives a direction in a restricted zone to an intending traveller presenting with commercial and other legal documents to do as ---?

We would expect him to adhere to a direction, yes.

174. Counsel relies on Mr Le Miere’s statement “We would expect him to adhere to a direction” to suggest that it was reasonable for Mr Whittaker to apprehend that he was not free to leave. With respect, I think that counsel seeks to draw too much from that sentence.
175. It is important to appreciate the obvious: passengers desire to pass through the departure hall and to board their flight with the minimum of delay. It is to be expected, as a matter of fact, that they will comply with suggestions, directions, requests and invitations of Customs officers and others in positions of authority who seem to be the persons through whom they will be enabled to achieve that objective.
176. Even if Mr Le Miere meant either that he thought that an intending traveller should adhere to a direction or that it would be “right” for him or her to do so or that an intending passenger was obliged in a general sense to comply with directions given by the persons in control of the departure hall, this is far removed from evidence that he thought that an intending passenger must comply with a direction not to leave the departure hall. Indeed, his other answers in the passage set out above show otherwise. The word “expect” is a word of many colours. It may be true to say that in any area which is controlled by persons in official positions, members of the public entering that area can be expected, in the interests of good order, to comply with directions that the officials give. This, however, is not compulsion or coercion or an overbearing of the will. And when the circumstances are such that the interests of the member of the public are to be served by compliance, it becomes artificial and unrealistic to attribute to the notion of expectation a significance of subjugation.

CONSIDERATION OF THE PLEADED CAUSES OF ACTION

(a) False imprisonment of Mr Whittaker by officers of the Commonwealth in the departure hall at the airport on 15 and 16 February 2008

177. The Victorian Court of Appeal discussed the elements of the tort of false imprisonment in McFadzean v Construction, Forestry, Mining and Energy Union (2007) 20 VR 250 (McFadzean) (special leave to appeal to the High Court was refused: see [2008] HCATrans 213). The respondents have extracted those elements in one of their sets submissions of 18 September 2009 (at para 27) as follows (references to paragraphs of the reasons for judgment omitted):
     1. the plaintiff bears the onus of proof to establish that what happened (having regard to any restraints and any possibilities of egress) can be constituted as imprisonment;
     2. false imprisonment is constituted by unlawfully subjecting another to total restraint of movement;
     100. the restraint must be total but it need not involve the use of force – it is sufficient if there be submission to the control of another after being given to understand that without submission there will be compulsion;
     4. the restraint may be comprised of a threat against the person or valuable property;
     5. the restraint must be imposed contrary to the person’s will;
     6. where there is no application of force there must be evidence of complete submission by the plaintiff;
     7. there is no false imprisonment if there is only partial obstruction of the will, whatever inconvenience it may bring, if the means of escape are available;
     8. the submission by the prisoner must be in response to duress sufficient to make any consent given ineffective to bar the action;
     9. it is not sufficient in law that conduct of the defendant has contributed to or influenced the plaintiff’s decision to remain, the conduct must have overborne the plaintiff’s will;
     10. in each case, it is a question of fact whether a restriction is so severe as to be characterised as false imprisonment;
     11. whether [sic – where] there is a reasonable means of egress, it does not matter that the plaintiff did not use it – there can be no false imprisonment;
     50. there are four factors to be considered in determining whether any ability to leave was a reasonable one:
         1. threat or danger to self;
         2. threat or danger to property;
         3. distance and time; and
         4. legality;
     13. there may need to be a serious risk (possibly even life threatening) before a means of escape is considered to be unreasonable;
     14. an avenue of egress may be reasonable even if it requires a plaintiff to commit a minor trespass;
     15. a mere partial interference with freedom to travel by one route does not compel a person to remain.
         

I am satisfied that the above summary is adequate for present purposes.

178. The forms of restraint pleaded by Mr Whittaker are as follows:
     1. his being stopped at the passport checkpoint (FASOC paras 6A(b), 7A(b));
     2. his being “totally restrained” as a result of being directed to remain on a particular seat in a confined corner area of the departure hall (FASOC paras 6A(c), 7A(c));
     3. his not being permitted to board the relevant Singapore Airlines Flight (FASOC paras 6A(d), 7A(d));
     4. his not being permitted to leave the airport after he had requested to do so after his flight had departed ((FASOC paras 6A(e), 7A(e));
     5. his not being permitted to leave the particular seat by reason of the very close proximity of the AFP officers to him, their being armed, and their forceful, threatening and menacing manner (FASOC paras 6A(f), 7A(f)); and

vi) his not being permitted to use his mobile phone (FASOC paras 6A(g), 7A(g)).

These pleaded forms of restraint must be considered in the light of the various statutory provisions discussed earlier.

179. As to (i), the suggestion seems to be that the existence of passport checkpoints constitutes a basis of false imprisonment. I disagree.
180. The Customs officers, being clearance officers for the purposes of s 175 of the Migration Act, were entitled to require Mr Whittaker, as a person who was about to board an aircraft that was to leave Australia, to produce his passport and other documents. In any event, I infer that Mr Whittaker willingly produced them. He did not give evidence that he wanted to walk straight through without producing them but was prevented from doing so. He sensibly conformed to the régime under which passengers intending to depart produced their passport and other documents to clearance officers under the Migration Act.
181. A further problem with this class of restraint is that it is not really an imprisonment or confinement at all: Mr Whittaker remained free to go anywhere on the landside of the checkpoint and was prevented only from going to the area of the building airside of it.
182. As to (ii), there are conflicts between the evidence of Mr Whittaker and that of other witnesses concerning, in particular, the demeanour of certain AFP officers as well as the content of the conversations. In general terms, it can be said that Mr Whittaker characterised the AFP officers, or those of them who took the lead in dealing with him, as aggressive, threatening and intimidating. For reasons previously given, I prefer the evidence to the contrary of the officers.
183. Nothing turns on fine distinctions between the various versions of what was said to Mr Whittaker. For example, I would not distinguish between statements to the following effect (I do not purport here to quote words actually said to have been used):

You can sit on those seats over there if you like.

Sit on one of those seats over there.

Wait over there.

Wait over there. Someone will come to see you.

Sit over there.

Would you care to take a seat over there?

Stay over there until someone comes to talk to you.

It was the understanding of all involved and it was the fact that Mr Whittaker wanted to travel and to see the obstruction to his doing so disappear. Against that background, for someone in authority to direct Mr Whittaker to wait or where to wait is to be characterised, not as coercive, but as facultative or facilitative and, at least potentially, as being in his interests.

184. Counsel for Mr Whittaker seized on the language used by Ms Blair (“Nobody ushered him over to the seat to wait. I directed him where to wait”), Mr Le Miere (“We would expect him to adhere to a direction [given by a Customs officer in a restricted area to an intending traveller]”), and Senior Constable Khier (who accepted it as correct that Mr Whittaker “was not to leave until that police work had finished”). None of their statements were evidence of coercion of Mr Whittaker’s will. Of course, Mr Whittaker would have preferred to be allowed to go airside straight away, but given that there was a problem, he preferred to wait and have it addressed than to retreat immediately. While Mr Whittaker testified that he thought he was not free to leave the departure hall, it is noteworthy that he did not say that he would have preferred to leave the departure hall landside as against awaiting more information from the AFP officers.
185. There are two ways of analysing the position. First, because Mr Whittaker believed that he was not free to leave the departure hall until the AFP officers had finished with him (and I accept that many people being questioned by police officers might hold that view), the possibility of his choosing to return landside did not arise for consideration by him. Second, and alternatively, because Mr Whittaker strongly desired to fly, any question of his choosing to return landside but being prevented from doing so did not arise for consideration by him. While I find in accordance with the second analysis, even according to the first, Mr Whittaker’s claim of false imprisonment fails. His understanding would have been based on the drawing of a wrong inference from nothing more than the exercise of the powers given to the AFP officers by s 72U(2)(b) of the Collection Act. On my findings the AFP officers said and did nothing over and above lawfully exercising those powers to support a drawing by Mr Whittaker of the inference that he was not at liberty to return landside. The element of “imprisonment” was absent.
186. As to (iii) it is not obvious how Mr Whittaker’s not being permitted to board the relevant Singapore Airlines flight imprisoned him in the departure hall. If the claim were re-framed as a complaint against being prevented from leaving Australia and therefore of false imprisonment within Australia, the claim would fail on the ground that his perfect liberty to move around Australia is inconsistent with a condition of imprisonment: see Louis v Commonwealth of Australia (1987) 87 FLR 277 at 282 per Kelly J.
187. In any event, the answer to (iii) is to be found in s 72U of the Collection Act in the light of the existence of the DPO relating to Mr Whittaker (see [25] above).
188. As to (iv), there is no merit in this claim. Mr Whittaker in fact left the airport without difficulty. Mr Whittaker did not give evidence supportive of (iv).
189. As to (v), I do not accept that Mr Whittaker was prevented from leaving his seat by reason of the very close proximity to him of the AFP officers, their being armed, or their allegedly forceful, intimidating and menacing manner. There was a conflict in the evidence as to how close the AFP officers were to Mr Whittaker. Indeed, there was evidence that AFP officers are trained to keep a certain minimum distance between themselves and persons to whom they are speaking. I am not satisfied that their demeanour was forceful, intimidating or menacing. Nor am I satisfied that they were unduly close to Mr Whittaker.
190. There was also a conflict in the evidence as to the physical layout of the departure hall. I am satisfied that Mr Whittaker was not confined in a room or corner and I am satisfied that he was within easy walking distance of the landside exit.
191. The AFP officers were armed but there is not the slightest suggestion that they referred, by word or gesture, to their weapons. I reject any suggestion that they were, on account of being armed, either alone or with other factors, forceful, intimidating or menacing.
192. As to (vi), there is a conflict in the evidence and I do not accept Mr Whittaker’s testimony that he was not permitted to use his mobile phone. However, even if he was told not to use his mobile phone, this would not constitute imprisonment.
193. For the above particular reasons, Mr Whittaker’s pleaded claim of false imprisonment fails.
194. In more general terms, it fails because it was open to Mr Whittaker at any time to abandon his attempt to fly and to leave the departure hall and return to the unrestricted area of the airport. Mr Whittaker relies on the pleaded forms of constraint as having overborne his capacity to make that choice. For the reasons given, I do not accept that they did. The reason why Mr Whittaker did not leave the departure hall is that he preferred to remain there because he understood that that course might lead to his being permitted to fly.
195. Any suggestion that there was physical difficulty associated with Mr Whittaker’s exiting the departure hall or that the temporary holding of his travel documents prevented the landside exit from qualifying as a reasonable means of egress is unpersuasive: cf The Balmain New Ferry Company Limited v Robertson [1906] HCA 83; (1906) 4 CLR 379 at 387; McFadzean at [54]–[89].

(b) Assault of Mr Whittaker by officers of the Commonwealth in the departure hall on 15 and 16 February 2008

196. This claim was not pressed.

(c) Trespass to Mr Whittaker’s property at the airport on 15 and 16 February 2008

197. The claim of trespass to goods is pleaded in paras 6C and 7C of the FASOC in relation to Mr Whittaker’s passport and boarding pass for the relevant flight and in paras 6D and 7D in respect of his luggage. The claim was pressed only in relation to the passport and boarding pass. The claim fails.
198. The property in the passport remained with the Commonwealth: see s 54 of the Australian Passports Act 2005 (Cth).
199. No Commonwealth officer “seized and took possession” of Mr Whittaker’s passport and boarding pass; on the contrary, he voluntarily submitted them to a Customs officer/ clearance officer in order to facilitate his clearance to leave Australia.
200. Both documents were held for a short time by others with Mr Whittaker’s consent while enquiries were made to verify his identity. I reject Mr Whittaker’s submission that the officers who held his travel documents stepped outside their statutory powers. Those powers are given to clearance officers by s 175 of the Migration Act 1958 (Cth) and to authorised officers by s 72U(2)(b) of the Collection Act. Mr Whittaker’s submission seems to be that the officers held his documents for an unreasonably long period and for the impermissible purpose of preventing him from leaving the departure hall. Neither submission is supported by the evidence and I reject them both.
201. The boarding pass was of no value because Mr Whittaker was not in a position lawfully to travel on the particular flight to which it related.
202. Even if the cause of action of trespass to goods were made out in respect of the passport and boarding pass, no loss or damage has been proved in respect of the short period during which Mr Whittaker did not have either document upon his person. Nor is it suggested that they were damaged while others held them.

(d) Interference with contractual relations by unlawful means on 15 and 16 February 2008

203. Paragraphs 6E and 7E of the FASOC are in identical terms. They allege that the Commonwealth, by its servants or agents, “by means of an illegal act, interfered in the contractual relations of [Mr Whittaker] whereby [Mr Whittaker] suffered loss and damage”. It may be that para 6E was intended to refer to the events of 15 February 2008 and Flight SQ 232 on that date, while para 7E was intended to refer to the events of 16 February 2008 and Flight SQ 222 on that date. I so read the paragraphs and I read the reference in para 7E to para 6D as if it were a reference to para 7D – see [4] above.
204. The particulars to both paragraphs are set out discursively in identical lettered paras (a) to (l). Those paragraphs show little relationship to the pleading of interference in Mr Whittaker’s contractual relations by means of an illegal act. However, the opening words of paras 6E and 7E are “In the alternative to paragraph 6D and in the premises therein...”. Paragraph 6D, which pleaded trespass to Mr Whittaker’s property, includes an allegation that the Commonwealth’s servants or agents were aware of the contract between Mr Whittaker and Singapore Airlines. Paragraph (f) of para 6D also makes reference to Mr Whittaker’s employment contract. If one pieces together paras 6D, 6E and 7E and reads paras 8 and 9 with them, it seems that the claim is that on each date by means of an illegal act, the Commonwealth interfered in Mr Whittaker’s contract with Singapore Airlines and his employment contract.
205. The “illegal act” relied on is difficult to ascertain from the discursive particulars which are as follows:
     1. without explanation, retained the First Applicant’s Passport, completed Immigration document and Airline Boarding Pass; and
     2. 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
     100. 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
     4. 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
     5. 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
     6. shortly thereafter approached the First Applicant bearing firearms; and
     7. proceeded to ask the First Applicant questions in full view of the general public passing through the Immigration zone; and
     8. stood side by side with arms folded and in a position where the First Applicant felt further restrained, threatened and intimidated; and
     9. 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
     10. directed that the carrier discharge the Applicant’s [sic – First Applicant’s] luggage including his equipment and tools of trade from the aircraft of Singapore Airlines conducting flight SQ232; and
     11. refused to provide any reason for detaining the First Applicant or for preventing the First Applicant from going about the First Applicant’s business or from boarding the Singapore Airlines flight SQ232; and
     50. finally instructed and or ordered the First Applicant to leave the Immigration zone and further to leave the Sydney International airport 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.
         
206. Some of the paragraphs in the particulars are clearly irrelevant to any illegal act constituting an interference with Mr Whittaker’s contractual relations, such as paras (e), (g) and (k). The particulars are essentially a collection of complaints made elsewhere in the FASOC. Doing the best I can, I will treat the illegal act as being that the Customs officers and AFP officers, without lawful authority, prevented Mr Whittaker from boarding Singapore Airlines Flight SQ232 (as noted above that flight is the only flight mentioned in paras 6E and 7E, but my reasons also apply to flight SQ 222 on 16 February 2008 which I will treat as referred to in para 7E).
207. The short answer to this claim is that I am satisfied that the Customs officers were authorised by s 72U(2)(b) of the Collection Act, read with s 72X of that Act, to require Mr Whittaker to produce the documents that he produced to them and to answer questions and to wait while the position was checked, and that the AFP officers were similarly authorised by s 72U(2)(b) read with s 72X, and were authorised by s 72U(2)(a) to prevent Mr Whittaker from boarding Flight SQ 232 (and that the Customs officers and AFP officers on the following day were similarly authorised in relation to Mr Whittaker’s proposal to board Singapore Airlines Flight SQ 222).
208. In their submissions, the respondents quote the following passage from Butterworths, Halsbury’s Laws of Australia, vol 26 (service 272), 45 Tort, ‘5 Intentional Interference with Trade or Business’ [415-1550]:

The tort of interference with contractual relations is committed where a person knowingly and intentionally interferes with contractual relations or the contractual rights of the complainant, thereby causing damage to that person, where there is no sufficient justification for that interference. It must be shown that there was a contract which had been interfered with by the defendant, whether by inducing one of the parties to break the contract or by interfering with performance of the contract, and that the defendant had sufficient knowledge of the contract to know he or she was hindering or preventing the performance of the contract. It is not sufficient that the defendant hoped, wished or had an ‘uncommunicated subjective desire’ that the contract would be breached.

209. The respondents first submit that Mr Whittaker’s claim cannot succeed because it is not brought within the rubric of a claim of misfeasance in public office.
210. The respondents rely on Sanders v Snell [1998] HCA 64; (1998) 196 CLR 329. In that case, Mr Snell was appointed for a term of two years as the Executive Officer of the Norfolk Island Government Tourist Bureau, a statutory corporation. The employment was extended for an indefinite term in May 1992. Mr Sanders was sworn in as Minister for Tourism on 21 May 1992. On 17 June 1992 he sent to the Chairman of the Bureau a written direction to terminate Mr Snell’s employment at the earliest practicable date. When the members of the Bureau queried the direction and requested a meeting with Mr Sanders, he revoked their own appointments. He appointed new members in their place and issued a further direction in similar terms to the Bureau as newly constituted which now resolved to terminate Mr Snell’s appointment. The directions were given in the exercise of a statutory power vested in the Minister.
211. Mr Snell sued Mr Sanders for wrongful inducement of a breach of the contract between Mr Snell and the Bureau, for malicious acts and directions causing harm and loss, and for misfeasance in public office.
212. Beaumont CJ of Norfolk Island found that Mr Sanders had induced a breach of the contract of employment and awarded damages to Mr Snell. His Honour made no finding about the claim of misfeasance in public office.
213. Mr Sanders appealed and Mr Snell cross-appealed to a Full Court of this Court. The Full Court held that a finding of inducement of breach of contract had not been open but that the claim of misfeasance in public office was established. Accordingly, the Full Court dismissed the appeal and allowed the cross-appeal.
214. By special leave, Mr Sanders appealed to the High Court. Mr Snell applied for special leave to cross-appeal. The High Court refused Mr Snell’s application for special leave to cross-appeal, but allowed in part Mr Sanders’s appeal.
215. The High Court held that the direction did not induce a breach of contract because it left it open for the members of the Bureau to terminate Mr Snell’s contract in accordance with its terms, and could not be read or understood as requiring or suggesting that the Bureau breach its contract with Mr Snell. In relation to the claim of misfeasance in public office the High Court held, by a 4:1 majority, that the giving of the direction under a statutory power required the according of procedural fairness by Mr Sanders to Mr Snell and this was not given. However, their Honours held that there were insufficient findings to determine whether Mr Sanders knew, or was reckless as to the possibility that his direction was without power for want of procedural fairness, or whether he was dishonest, in either case as was required to establish the tort of misfeasance in public office. Their Honours remitted the matter for retrial on the issue of misfeasance in public office.
216. It is the state of mind of the putative tortfeasor in a case of misfeasance in public office that assumes importance in the present case for the purpose of the respondents’ present submission.
217. It should be noted at the outset that unlike the plaintiff in Sanders v Snell, the present applicants do not sue for the inducing of a breach of contract or for misfeasance in public office. In the amended statement of claim that was the subject of the Earlier Reasons (ASC), there were claims of interference with contractual relations (paras 8 and 9), interference with trade (para 10) and interference with liberty and contracts (paras 23A–23C). I addressed those claims in the Earlier Reasons at [43]–[60], [61]–[67] and [83]–[87] respectively, and will not repeat what I said there. No doubt it is in the light of my remarks in the Earlier Reasons that the applicants do not plead that there was an inducement of a contracting party to decide to breach a contract, but that there was direct interference by unlawful means with performance of the contracts in question: see [53] of the Earlier Reasons. (I note, in passing, that para 8(n) of the FASOC alleges that the Commonwealth “intended [Mr Whittaker to] forego and breach the contracts”.)
218. In Sanders v Snell, Gleeson CJ, Gaudron, Kirby and Hayne JJ discussed the emerging tort of interference with trade or business interests by an unlawful act directed at the person injured, and the relationship between inducement by a private person of a breach of contract on the one hand and misfeasance in public office on the other.
219. In relation to the former, their Honours favoured a restrictive approach to the meaning of “unlawful act”. In particular, they said, there are to be excluded acts whose only “unlawful” aspect is that they are unauthorised in the sense that they are ultra vires and void. The unauthorised decision of the AFP officers that is to be hypothesised is a decision made with a belief but not on reasonable grounds that there was a valid DPO in force in respect of Mr Whittaker. On this hypothesis, their decision to take reasonably necessary steps to prevent him from departing from Australia would not be authorised by s 72U of the Collection Act but without more, would not in my opinion be unlawful in the sense required for the purposes of the tort of misfeasance in public office. (Lest there be any misunderstanding, however, I should make it clear that my finding is that the AFP officers did believe on reasonable grounds that a DPO was in force in respect of Mr Whittaker.)
220. In relation to the relationship between inducement by a private person of a breach of contract and misfeasance in public office, their Honours stated at [39]-[40] (footnote references omitted):

[39] There would be no work to be done by the tort of misfeasance if what is an unlawful act for the purposes of that tort is the same as it is for the tort of unlawful interference with trade or business interests and if questions of knowledge and intention are to be resolved in both cases according to the same test. Further, if the knowledge or intention required for the tort of misfeasance is of a different kind from the knowledge or intention required for the other tort, the potential for expanding the liability of public officials by resorting to a tort of unlawful interference with trade or business interests is obvious (especially if both torts are enlivened by the same kinds of unlawful act). Because misfeasance in public office is concerned with performance of public duties, and because the tort of unlawful interference is concerned primarily with private, not public interests, misfeasance in public office should not be subsumed in some wider economic tort. In particular, what is an unlawful act for the purposes of one tort is not necessarily an unlawful act for the purposes of the other.

[40] The facts of the present case provide a good illustration of the difficulties that arise if wrongful acts are not confined in the way suggested. If the appellant's direction to the Bureau was beyond power (because it should not have been given without first giving the respondent an opportunity to make representations about it) it was a direction that was not authorised by law. If the appellant's conduct amounted to misfeasance in public office and his conduct caused damage to the respondent he will be liable to the respondent on that account. If, however, his conduct did not amount to misfeasance in public office (because he lacked the requisite intention for that tort) he should not be held liable for a wrongful interference in the economic interests of the respondent when his interference did not constitute his procuring a breach of the employment agreement. If there was a breach of the employment agreement the respondent would have his remedies against the employer. If there was no breach and simply the termination of the agreement without breach (thereby defeating the respondent's hope or expectation of the agreement continuing) there is no pressing necessity to create a new form of tortious liability to compensate the respondent for the loss of that hope or expectation. Existing forms of liability, for negligence ([...]) and for misfeasance in public office, provide adequate constraints on public officials and adequate avenues for compensation to those who suffer wrong.

221. In my opinion these passages are applicable in the circumstances of the present claim of direct interference by unlawful means with the performance of Mr Whittaker’s contracts. What is required is that the Commonwealth officers have had that state of mind that is required in a claim of misfeasance in public office.
222. As their Honours observed in Sanders v Snell (at [38]), for the purposes of deciding Northern Territory of Australia v Mengel [1995] HCA 65; (1995) 185 CLR 307 the majority in the High Court considered it sufficient to proceed on the basis that that tort required that the public official knew that the act, which involves a foreseeable risk of harm, was beyond power or recklessly disregarded the means of ascertaining the extent of his or her power (at 347).
223. The FASOC does not plead, and the evidence does not establish, that any of the Customs officers or the AFP officers had that state of mind that is a necessary element of the tort of misfeasance in public office.
224. Inquiries were made by the AFP officers who satisfied themselves that a DPO existed in respect of the Mr Whittaker with whom they were dealing at the airport. They did not intend to cause him harm and were not recklessly indifferent as to whether he would be caused harm. They believed that they were authorised by law to prevent Mr Whittaker from departing from Australia. (In fact s 72U(2) of the Collection Act did so authorise them.) By making careful enquiries to ensure that Mr Whittaker was indeed the person against whom a DPO had been made, they took all steps reasonably open to them to ensure they did not cause the wrong person to suffer harm.
225. On this ground, the claim of interference with contractual relations fails.
226. Another reason why the pleaded claim fails is that there is no sufficient evidence that Mr Whittaker was ever a party to any contract with either Singapore Airlines or with Rotary. There is no proof that he, as distinct, for example, from Rotary, bought the Singapore Airlines tickets, although Mr Whittaker stated that he purchased the tickets on the basis he would be repaid by Rotary. Nor is there evidence that he entered into a contractual relationship that he in particular, as distinct from anyone else, would perform the services in Malaysia.
227. Paragraphs 6E and 7E of the FASOC plead claims brought by Mr Whittaker, not by Rotary. Paragraph 9(a), however, pleads that on both dates “and in the premises referred to in paragraph 8” the Commonwealth interfered in Rotary’s supply contract “whereby” Rotary “suffered loss and damage including additional costs of performing the supply contract and loss of reputation”.
228. If there was a contract between Rotary and Phillips, there is no evidence that Rotary breached it. Clause 4 of Rotary’s quote “NSW0108” dated 13 February 2008 was as follows:

Where force majeure prevents or delays the Contractor [Rotary] from performing any obligation under this Agreement, the Contractor’s obligation is suspended as long as the force majeure continues. Force majeure means any event outside of the party’s control or influence.

It was something beyond Rotary’s control or influence that Mr Whittaker was not permitted by the authorities to leave Australia. Rotary could not control or influence those who prevented Mr Whittaker from departing Australia.

229. Moreover, the evidence is that Rotary supplied Mr Di Giacomo to provide the required services and Rotary seems to have made a profit on the contract with Phillips. Lest it should be thought that there may have been ongoing damage to Rotary, it should be noted that Mr Whittaker described the arrangement between Rotary and Phillips as a “one-off” arrangement because Phillips preferred to use local contractors, but did not do so on this particular occasion only because the engineer who usually did work of the relevant kind was not available.
230. Paragraphs 9(b) and (c) plead interference by the Commonwealth in Mr Whittaker’s employment and carriage contracts respectively. My observations above in relation to paras 6E and 7E are sufficient to dispose of the claims made in paras 9(b) and (c).

(e) Interference with the trade or business of Rotary and/or Mr Whittaker on 15 and 16 February 2008

231. This claim is pleaded in para 10 of the FASOC.
232. Paragraph 10 pleads a claim of interference with the trade or business of both applicants.
233. My discussion under (d) at [203] ff above disposes of this cause of action.
234. The claim is not established.

(f) Intimidation of Mr Whittaker on 15 and 16 February 2008

235. This claim was not pressed.

(g) Denial by the Registrar of procedural fairness to Mr Whittaker in connection with the making of the DPO on 6 December 2006

(i) The tip-off

236. Paragraphs 14 – 17 of the FASOC plead that the Registrar was under a duty to afford natural justice or procedural fairness to Mr Whittaker, which required the Registrar to offer him an opportunity to be heard in opposition to the making of the DPO on 6 December 2006, but that he was not given that opportunity because he was not invited to respond to a certain “tip-off” which was what had prompted the Registrar to make the DPO. The tip-off is not expressly pleaded but the submissions of counsel for Mr Whittaker made it clear that the complaint is as I have described it. (Paragraphs 18 and 19 of the FASOC plead that it was also a failure to accord natural justice or procedural fairness that the Registrar did not give Mr Whittaker a copy of the DPO as soon as practicable after it was made or at all – a claim that I reject at [262] – [279] below.)
237. Evidence touching the making of the DPO was given by Trent Wearne who is employed as a Customs Service Officer, Level 4, in the CSA in Perth. Mr Wearne has worked for the CSA since 14 October 2004; since 6 November 2006 in the DPO Team in Perth. His duties in that position involve managing child support cases that are considered for DPO enforcement action. On 5 December 2006 he was allocated Mr Whittaker’s case.
238. Mr Wearne states that his usual practice when he is allocated a case is to search the CSA’s information management database named “CUBA” to see what has happened previously in the case. File notes of Customer Service Officers are recorded in CUBA.
239. On 5 December 2006 Mr Wearne researched Mr Whittaker’s case and found a file note recording a call from an “anonymous caller” to the CSA tip-off line. The file note dated 5 December 2006 and timed 15:57, stated, relevantly:

has been heard to say intends to travel/move to avoid child support

The file note included other statements by the anonymous caller relating to Mr Whittaker and, in particular, his property. It identified the person who took the tip-off call as “Jan” and her area within the CSA. Mr Wearne said that he did not know who Jan was.

240. On 5 December 2006, soon after receipt of the tip-off call, Mr Wearne telephoned Mr Whittaker. Mr Wearne made a file note of the conversation. The file note is dated 6 December 2006 but Mr Wearne says that he made it immediately after his call to Mr Whittaker on 5 December 2006, and that he copied it and pasted it into CUBA on 6 December 2006. The file note is half a page in length. Mr Wearne states that it is not comprehensive and that the telephone conversation lasted for at least forty five minutes. I quote from the file note at [242] below.
241. Mr Wearne’s affidavit and oral testimony departed from the file note in certain respects. In particular, he states that he did not tell Mr Whittaker that a DPO had already been made. In his affidavit he said that in accordance with his practice what he told Mr Whittaker was that if he did not enter into a payment arrangement suitable to the Registrar, a DPO could be made. Mr Whittaker gave Mr Wearne reasons why he was not prepared to enter into a payment arrangement, which Mr Wearne did not regard as reasonable, and Mr Wearne said to Mr Whittaker (para 9):

If you don’t enter into a suitable payment arrangement then it is highly likely that a departure prohibition order will be made against you. A departure prohibition order will prevent you from being able to travel overseas.

242. The relevant part of Mr Wearne’s file note was as follows:

I then stated to the Pyr [Payer] that the other reason for my call was that we had placed (submission will be completed tomorrow) a DPO on him that would prevent any overseas travel. Pyr was furious at this and said there would be no way that would stop him from going overseas. I advised Pyr that there would be no travel overseas until his debt was paid in full. Pyr states when he receives DPO he will come and find me and shove them [sic – it] up my ass [sic]. [My emphasis]

In oral evidence, Mr Wearne said that he did not state the words emphasised. Perhaps that is why Mr Wearne placed those words in parentheses – they were an aside intended for readers of the note.

243. While the words “had placed” in the note are unequivocal, I accept Mr Wearne’s affidavit and oral testimony that he did not state that a DPO had in fact been made. There would be no reason for Mr Wearne to misrepresent the facts. In fact there would be good reason for him to prefer to warn Mr Whittaker of what could or might or would happen. That reason was the prospect of inducing Mr Whittaker to pay or arrange to pay in order to forestall the making of a DPO. There was no real possibility that the warning would enable Mr Whittaker to depart before the DPO was made because the making of it was imminent.
244. For his part, Mr Whittaker denies that Mr Wearne made any reference to a DPO at all. Although it does not matter for the purposes of the present ground of attack on the validity of the DPO, I accept that Mr Wearne did tell Mr Whittaker that if he did not enter into a suitable payment arrangement it was highly likely that a DPO would be made against him, and that a DPO would prevent him from travelling overseas. I accept that he told Mr Whittaker that one purpose of his call was to convey that information to him. I also accept that Mr Whittaker remonstrated in strong terms. For reasons previously given, I do not have confidence in Mr Whittaker as a witness.
245. Mr Wearne states that he completed drafting his submission for the making of a DPO on 6 December 2006. The submission is in evidence. It was made to Glenda Scott, State Manager, Child Support, who was a delegate of the Registrar for the purpose of the making of DPOs.
246. The submission records Mr Whittaker’s ongoing liability as $145.50 per month and his total debt, including “maintenance debt” of $15,156.56 and penalties totalling $24,154.42, of $39,310.98. The submission records that the current assessment was based on a 2005/2006 median income of $25,468, and that the ATO was prosecuting Mr Whittaker for non-lodgement (of income tax returns).
247. According to Mr Wearne’s affidavit (para 11), the following statements in his submission were based on comments that Mr Whittaker had made in their telephone conversation of 5 December 2006:

“Mr Whittaker has stated that he runs his own business and that he sub contracts to Cairns Fencing.”

“Mr Whittaker has numberous [sic] blockers [people who raise obstacles to recovery of payment], he has issues with the cs scheme in general and is unwilling to make any voluntary payments. ... Mr Whittaker has stated that he intends to travel overseas in order to avoid paying child support. Mr Whittaker does not accept that CSA has any administrative/enforcement powers to collect child support.”

“Mr Whittaker was very aggressive when contacted to discuss his arrears and the DPO. He was unwilling to discuss his issues or enter into an acceptable arrangement.”

Mr Whittaker’s evidence is that virtually the whole of Mr Wearne’s file note is incorrect as a record of what was said, or at least that proportion of it that related to the DPO. However, I accept that it is a substantially accurate record, not of the entire conversation, but of those parts of it that the note purports to record.

248. In my opinion the Registrar was not subject to a duty to comply with procedural fairness aspects of natural justice before making the DPO. It may be accepted, as pleaded, that a DPO would affect the liberty and legitimate interests of Mr Whittaker, so that in general terms one might expect such a duty to arise. However, the duty will not arise if the statutory context, by necessary implication, excludes it: see Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 563, 593, 594-5, 609-612, 632; Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596 at 598.
249. In my opinion Pt VA of the Collection Act establishes a régime, both the general object and the detail of which are inconsistent with the existence of the duty.
250. It will be recalled that the principal objects of the Collection Act are, inter alia, to ensure that children receive from their parents the financial support that the parents are liable to provide, and that periodic amounts payable by parents towards the maintenance of their children are paid on a regular and timely basis: s 3(1)(a) and (b) of the Collection Act. The connection between a departure from Australia of the parent liable and discharge of his or her child support liability is obvious: enforcement of the obligation to pay is likely to be more difficult if the person liable is out of Australia. Yet notification to the person of a proposal to make a DPO in sufficient time to allow him or her to be heard in opposition to the proposal, will allow the person to defeat the object of the proposed DPO by departing from Australia immediately. That is to say, it would be antithetical to the object and purpose of a DPO to offer the person an opportunity to be heard in opposition.
251. I turn now to the matters of detail. Part VA provides several remedies to a person in respect of whom a DPO has been made, suggesting a legislative intention that these rather than general law notions of natural justice and procedural fairness should be the remedies available to an aggrieved liable parent.
252. First, s 72G(2) requires the Registrar to notify the person that the order has been made. The notice must be in an approved form (s 72G(3)). Apparently the form approved by the Registrar (see s 72X) notifies the person in respect of whom the DPO has been made of his or her rights (see [271] below).
253. Second, the person may apply for a DAC (Div 4 comprising ss 72K-72P). Importantly, under s 72L(2) the Registrar must issue a DAC if satisfied of certain matters, and under s 72L(3) may do so if not satisfied of those matters but satisfied of others. The DAC régime represents a carefully devised carving out from the operation of a DPO.
254. Third, if aggrieved by the making of the DPO, the person may appeal to this Court or to the Federal Magistrates Court of Australia against the making of the DPO (s 72Q(1)).
255. Fourth, the person may apply to the Administrative Appeals Tribunal for review of a decision of the Registrar under ss 72I, 72L or 72M (s 72T(1)).
256. In Dalco v Federal Commissioner of Taxation (1987) 19 ATR 443 (Dalco), Young J addressed comparable provisions in ss 14S, 14T and 14V of the Taxation Administration Act 1953 (Cth). That case concerned an appeal by a taxpayer under s 14V of that Act against a DPO made by the Commissioner of Taxation under s 14S of that Act. Section 14S(1) empowered the Commissioner to make a DPO in respect of a person subject to a tax liability where the Commissioner believed on reasonable grounds that it was desirable to make the DPO for the purpose of ensuring that the person did not depart Australia without either wholly discharging the tax liability or making arrangements satisfactory to the Commissioner for it to be wholly discharged. The strong similarity between this provision and s 72D of the Collection Act is obvious.
257. Young J remarked in passing that the various rights of appeal given to the taxpayer suggested that the Commissioner could make the decision administratively “and it may be, without hearing anybody, on suspicion and without giving his reasons” (at 448).
258. In Edelsten v Federal Commissioner of Taxation (1989) 85 ALR 226, Einfeld J applied (at 232-3) the reasoning of Young J in Dalco, adding the general observation that to give an intended recipient of a DPO sufficient advance notice of its issue may rob the procedure of efficacy by providing the person with an opportunity to leave the country before the order can be made. An aspect of Edelsten was disapproved by a full court of this Court in Poletti v Commissioner of Taxation (1994) 52 FCR 154 but this does not affect the present point.
259. There is no sound basis for distinguishing the provisions of Pt VA of the Act from the comparable provisions of the Taxation Administration Act.
260. Other cases in which it has been held that requirements of natural justice did not apply because their application would frustrate the object and purpose of the Act in question are: Grech v Featherstone (1991) 33 FCR 63 at 67; and Attorney-General (Qld) v Francis [2008] QCA 243; (2008) 250 ALR 555 at [61].
261. The complaint made in paras 14-17 of the FASOC of the failure to afford natural justice or procedural fairness is not sustained.

(ii) Failure by Registrar to notify Mr Whittaker of making of DPO

262. In paras 18 and 19 of the FASOC, the applicants claim that the Registrar failed to accord Mr Whittaker natural justice or procedural fairness in connection with the making of the DPO by failing to give him a copy of the DPO as soon as practicable after it was made. It seems to be claimed (in para 20) that the result is that the DPO was “void and/or was made in excess of jurisdiction”.
263. I do not understand on what basis this result could flow from a failure to give a copy of a DPO that had already been made. The pleading assumes that the DPO had been made and complains of a subsequent failure on the part of the Registrar. There is no merit in the ground as pleaded.
264. The Collection Act deals with the question of notification of the making of a DPO. It does not require that a copy of the DPO be given to the person. Rather, s 72G(2) provides that the Registrar must notify the person that the DPO has been made, and s 72(3) provides that the notice must be in the approved form and must be given as soon as practicable after the making of the order.
265. In my opinion, a failure to notify does not go to the validity of the DPO. Such a failure would be potentially relevant to other matters, such as the knowledge or recklessness of the person for the purposes of the offence created by s 72F (set out at [16] above). It does not, however, prevent the powers given to an authorised officer by s 72U of the Collection Act from arising.
266. I turn now to the circumstances relating to notification in the present case.
267. Regulation 14(1) of the Child Support (Registration and Collection) Regulations 1988 (Cth) (the Regulations) provides, relevantly, as follows:

Any notice or other communication by or on behalf of the Registrar may be served on a person:

(a) if the person is a natural person:
(i) by causing it to be personally served on the person; or
(ii) by leaving it at the person’s address for service; or
(iii) by sending it by pre-paid post to the person’s address for service; or

(b) ...

and in any case in which service has been attempted by use of the pre-paid post, unless the contrary is proved, service will be taken to have been effected at the time when the notice or other communication would, in the ordinary course of the post, have arrived at the place to which it was addressed.

The expression “address for service” is defined in reg 15, which provides, relevantly, in subregs (1) and (2) as follows:

(1) The address last notified by a person to the Registrar as the address for service of the person is, for all purposes under the Act and Regulations, that person’s address for service.

(2) If no address for service has been notified to the Registrar but the Registrar’s records nevertheless contain an address attributed to the person, the last such address in any record held by the Registrar is the person’s address for service under the Act and Regulations.

268. Evidence as to notification was given by CSA officers Wearne and Wines. Mr Whittaker said simply that he did not receive any notice that a DPO had been made.
269. Mr Wearne states that his recollection is that on 6 December 2006, Ms Scott telephoned him to advise that she had made the DPO which was ready for collection. A copy of the DPO is annexed to his affidavit.
270. Mr Wearne states that he placed the original DPO and DPO submission in a folder belonging to Ms Scott’s Executive Assistant. He also prepared a letter to be sent as from Ms Scott to Mr Whittaker enclosing a copy of the DPO, using the relevant letter template at the time in CUBA. He caused CUBA to generate the letter and to insert automatically the electronic signature of Ms Scott onto it. A copy of the letter is Annexure E to Mr Wearne’s affidavit. I infer that the template was the form of notice approved by the Registrar for the purposes of ss 72G(3) and 72X of the Collection Act. The letter was addressed to Mr Whittaker c/- a Post Office box number in Cairns, Queensland 4870. I infer that this was Mr Whittaker’s address for service within subreg (1), alternatively subreg (2), of reg 15 set out at [267] above.
271. The letter informed Mr Whittaker that as the CSA had been unsuccessful in making suitable arrangements with him for payment of his outstanding child support, the Registrar had issued a DPO which authorised the AFP to prevent his departure from Australia. The letter enclosed a copy of DPO. The letter also informed Mr Whittaker of his right to appeal to this Court or to the Federal Magistrates Court. It also advised him that in limited circumstances he might apply to the CSA for a DAC, which, if granted, would allow him to leave Australia. Finally, it advised him that it was an offence for a person, knowingly or recklessly, to attempt to depart from Australia while a DPO was in force, unless the person possessed a valid DAC.
272. Mr Wearne states that he obtained a registered mail envelope from the CSA receptionist at Perth and completed the recording sheet to show that the envelope was going to Mr Whittaker and recorded his CSA reference number. He placed the letter and a copy of the DPO into the envelope and sealed it, copying the address from the letter onto the envelope. He then placed the envelope into the “Mail Out” tray, which is a plastic box from which he said the mail team collects mail twice a day.
273. James Cameron Wines is a Facilities Officer, Customer Service Officer Level 4 in the CSA in Perth. Since 2001 he has worked in the Facilities Team at the CSA in Perth. In December 2006 his duties included being a member of a team responsible for the reception area of the CSA’s Perth office.
274. In paras 4–6 of his affidavit Mr Wines described the relevant mail procedure at CSA in Perth as at 6 December 2006 as follows:
     4. I have no recollection of the registered mail letter sent to Mr Mark Alan Whittaker (Mr Whittaker) but can describe the relevant mail procedure at CSA Perth as at 6 December 2006:

4.1 A CSA Customer Service Officer seeking to issue a letter by registered mail (the letter) to a customer would be given a Registered Mail envelope by a staff member at the CSA Perth reception.
4.2 Each registered mail envelope has an individual registration number. CSA Reception creates sheets (recording sheets) which record the individual registration numbers of 10 registered mail envelopes and spaces next to each for the relevant Customer Service Officer to record their name, the customer’s CSA reference number and the date.
4.3 Once the Customer Service Officer is ready to send the letter, they would place it in a “Mail Out” tray.
4.4 The “Mail Out” trays are emptied by a member of the Mail Team and taken to the Mail Room Team area where it is sorted into catergories [sic] (i.e. Express Post, Registered Mail and Normal Mail).
4.5 Once the Mail is sorted into these categories it is placed in a white Australia Post “Tub Bin” and delivered to the CSA Perth reception where it is collected at the end of the business day (16:00 hrs) by an Australia Post courier.

5. In my experience the system operated so that if someone put a registered mail envelope in any of the CSA Perth “Mail Out” trays before 3 pm on a business day then it would end up in the Australia Post “tub bin” that day.
   
6. I have made diligent searches but have been unable to locate the relevant recording sheet for 6 December 2006. There is a high rotation of staff who work on reception. Depending on who filed the recording sheets for a particular period, we may or may not be able to retrieve those recording sheets. The recording sheet for 6 December 2006 is one of a number that we cannot locate for the second half of 2006.
   
275. In cross-examination, Mr Wines was referred by counsel for Mr Whittaker to certain possible records which would confirm whether or not a particular letter had been sent by registered mail. It is not clear to me, however, which of these depended on the availability of the “recording sheet for 6 December 2006” referred to by Mr Wines in his affidavit. In any event, even if there is some stone unturned, I would not infer that the notice was not sent to Mr Whittaker.
276. On the basis of the evidence of Messrs Wearne and Wines, I infer 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 in Cairns, Queensland.
277. By the operation of reg 14(1) service is taken to have been effected at the time when the letter would, in the ordinary course of the post, have arrived at the Post Office in Cairns. It has not been proved that it did not arrive there. Mr Whittaker’s evidence that he did not receive the letter and the enclosed DPO is not evidence that they did not arrive at the Post Office box which was the address for service: see Fancourt v Mercantile Credits Limited [1983] HCA 25; (1983) 154 CLR 87 at 94-97.
278. For the above reasons, not only does the suggested failure to give notice of the making of the DPO not touch on the question of the validity of the making of it, but by the operation of reg 14, the letter and enclosed copy of the DPO were given to Mr Whittaker at the time when, having been posted in Perth on 6 December 2006, they would have arrived in the ordinary course of post at the Post Office box in Cairns.
279. I note that the result would be the same if ss 28A and 29 of the Acts Interpretation Act 1901 (Cth) (the AI Act), rather than reg 14 of the Regulations, applied.

(h) Bad faith on the part of the Registrar or absence of reasonable grounds in making the DPO on 6 December 2006

280. In the Earlier Reasons I had occasion to address para 23 of the ASC which alleged that the DPO was not made in good faith or was not based on reasonable grounds. At [82] I said that para 23 should be struck out to the extent that it alleged lack of good faith with leave to replead, and noted that those advising the applicants would no doubt not again plead lack of good faith if there were not material facts capable of supporting that allegation.
281. Paragraph 23 of the FASOC now introduces an allegation of negligence. The paragraph claims that the Registrar “negligently and/or in bad faith purported to make” a DPO under s 72D of the Collection Act, or, in the alternative, that the making of the DPO “was not based on reasonable grounds” and claims that the DPO should be set aside, discharged or revoked by the Court under s 72S and/or s 111B of that Act.
282. The applicants did not seek leave to introduce a claim of negligence. Moreover, most, if not all, of the particulars to para 23 that might be argued to be particulars of negligence, as distinct from bad faith, relate to the making of the administrative assessment of child support or the use by the Registrar of tax file numbers, or both. I ordered that the challenges made in the ASC to the making of the administrative assessment and to the use of Mr Whittaker’s tax file number should be struck out without leave to replead: see [89]-[105] of the Earlier Reasons.
283. In the course of the hearing on 14 September 2009, counsel for the applicants said that it was not intended to assert an independent claim of negligence. Rather, matters supportive of negligence seemed to be relied on as indicia of bad faith.
284. The nearest that para 23 of the FASOC comes to alleging facts that might be said to constitute bad faith is in its allegation that the Registrar knew (apparently at the time of the making of the DPO):
     • that the administrative child support assessment had been made in breach of statutory duty and/or negligently;
     • that Mr Whittaker did not have a child support liability or, in the alternative, that his child support liability was nil;
     • that Mr Whittaker did not have a registered maintenance liability or knew that “the registrable maintenance liability was void and/or made in bad faith”; and
     • that it was not objectively desirable to make a DPO.
285. It suffices to say that it is simply not proved that the Registrar or any officer of the CSA, in particular Ms Scott or Mr Wearne, had any of those states of mind.
286. In oral submissions, counsel for the applicants elaborated on the matters said to reveal bad faith on the part of Mr Wearne as follows.
287. First, it was said that Mr Wearne unlawfully used Mr Whittaker’s TFN to create a new child support liability and recommend the DPO. I accept the respondents’ submission that to the extent that Mr Wearne had regard to information on CUBA that was in any way identifiable by reference to Mr Whittaker’s TFN, there was no unlawfulness. I dealt with the use of TFNs at [95]-[105] of the Earlier Reasons and rely on what I said there. I struck out the relevant paragraphs of the ASC (paras 28, 29 and 31) without leave to replead. Paragraph 30 was not pressed by the applicants and was also struck out. The applicants have re-pleaded unlawful use of Mr Whittaker’s TFN without leave.
288. Second, it was suggested that Mr Wearne changed Mr Whittaker’s assessment overnight in order to increase the amount of his child support liability and bolster the case for the making of the DPO. The evidence does not bear this out. Mr Wearne said that the assessment was already in place when he first became involved in the case on 5 December 2006. In fact the assessment of the monthly amount of $145.50 was made and issued on 2 November 2006 for the period from 1 December 2006 to 27 February 2007. Of course, a new assessment changing the rate as from 1 December 2006 does not affect the fact that Mr Whittaker had a substantial child support liability as at 6 December 2006, even without taking into account the raising of the rate that had occurred five days earlier.
289. Third, it was suggested that the assessment was in conflict with s 58 of the Assessment Act. That section provides that in the circumstances there set out, the Registrar may, in making an administrative assessment of child support, act on the basis that the person’s taxable income for the year of income is such amount as the Registrar considers appropriate, not exceeding 2.5 times the yearly equivalent of the “EAWE amount” as defined in s 5 of the Assessment Act (I need not discuss the definition). This contention, if it was pressed, was not made out on the evidence.
290. Finally, it is said that Mr Wearne’s bad faith is established by the fact that he, and implicitly the delegate, Ms Scott, had regard to the desirability of using a DPO to “secure civil debt”. The complaint seems to be that in recommending and making the DPO, Mr Wearne and Ms Scott respectively took into account an irrelevant consideration. It is trite that in order to be an irrelevant consideration for judicial review purposes, a consideration must be one which the relevant statute expressly or impliedly prohibits the decision maker from taking into account. Whether this prohibition exists is to be determined by reference to the subject matter, scope and purpose of the statute.
291. In his recommendation to Ms Scott, Mr Wearne stated:

The placement of a DPO will act as security for the debt and should assist negotiations with Mr Whittaker in order for satisfactory arrangements to be made in regards [sic] to his outstanding child support debt.

Generally speaking, the terms of s 72D(1) show that a DPO is intended to “ensure” that a person does not depart from Australia without either wholly discharging his or her child support liability or making arrangements satisfactory to the Registrar for its discharge. While a DPO is not security in a proprietary sense, it is security in a broader sense of a procedure designed to prevent recovery being frustrated.

292. It may be that the present submission is intended to distinguish between a purpose of preventing a particular imminent departure from Australia and a more general prevention of any departure from Australia. In my view even the latter is within para (b) of s 72D(1). That is to say, that paragraph is satisfied if the Registrar believes on reasonable grounds that it is “desirable” to make the DPO for the purpose of “ensuring” (a strong word: see Troughton v Deputy Commissioner of Taxation [2008] FCA 18; (2008) 166 FCR 9 at [20]) that the person does not depart at any time in the future from Australia for any foreign country without first discharging the child support liability or making arrangements satisfactory to the Registrar for its discharge.
293. Apparently, however, the Registrar would not hold that belief on reasonable grounds unless there was evidence of a risk that the person would depart from Australia for a foreign country, and no doubt this would commonly be established by evidence of past departures or of an intention to depart in the future.
294. It is not shown that by reason of the presence of the words or the concept of “security for the debt” in Mr Wearne’s recommendation, Mr Wearne or later Ms Scott took into account an irrelevant consideration.

(i) Appeal to this Court under s 72Q of the Collection Act against the making of the DPO

295. Paragraph 10 of the Further Amended Application seeks an order that the DPO be “revoked or set aside or stayed” under ss 72Q and 72S of the Collection Act. I referred to those sections at [23] above.
296. The only reference to s 72Q of the Collection Act in the FASOC is in particulars to para 26. That paragraph asserts the invalidity of Pt VA as being in conflict with Ch III of the Constitution. One of the particulars given is that an appeal under s 72Q in respect of a decision under s 72D of the Collection Act does not give a court sufficient grounds on which to set aside a DPO.
297. The FASOC does not identify grounds of appeal referable to s 72Q. Perhaps Mr Whittaker intended all of his attacks on the making of the DPO to constitute grounds of appeal.
298. The terms of s 72D(1) were set out at [16] above.
299. As to para (a) of s 72D(1), Mr Whittaker had, as at 6 December 2006, a child support liability.
300. As to para (b), Mr Whittaker had not made arrangements at that time satisfactory to the Registrar for that liability to be wholly discharged.
301. As to para (c), it may be noted that:
     • Mr Whittaker had failed to pay on every notice of debt except when he was in receipt of social security benefits so that the amount was deducted from his benefit automatically;
     • the instances of his failure number in the many dozens.
     • the Registrar had brought legal proceedings to recover monies as well as taken administrative action to attempt to locate and access Mr Whittaker’s resources; and
     • the Registrar was satisfied on the material stated in Mr Wearne’s sub mission that Mr Whittaker had the capacity to pay.

The history of the Registrar’s attempts to recover child support from Mr Whittaker, including the taking of proceedings in the Magistrates’ Court (Family Matters) in Cairns and the obtaining of an order for sale of Mr Whittaker’s property, and of Mr Whittaker’s failure to pay, is shown by an affidavit of CSA officer Judith Jackson, and the voluminous exhibits to that affidavit. I need not recount that evidence. There is no basis in the evidence for a conclusion that the Registrar was not entitled to be satisfied that Mr Whittaker had “persistently and without reasonable grounds failed to pay child support debts arising from a registrable maintenance liability” under s 17 of the Collection Act.

302. As to para (d), the evidence that Mr Whittaker intended to travel overseas was found in the dob-in telephone call and in Mr Whittaker’s statement to Mr Wearne that there was no way that a DPO would stop him from going overseas (see [242] above). The Registrar had reasonable grounds for holding the belief referred to in para (d) of s 72D(1).
303. What I have said above is sufficient to call for a dismissal of any appeal under s 72Q of the Collection Act.
304. In seeking to negative satisfaction of the conditions set out in s 72D(1), Mr Whittaker appears to rely upon attacks in relation to antecedent circumstances. In relation to these I adopt the following submissions of senior counsel for the respondents:
     116. In his appeal under s 72Q, ... Mr Whittaker appears to wish to rely upon:
          1. a challenge to the validity of the original assessment in 1994 (and possibly subsequent assessments) by reason of:
             1. use of the wrong income for the periods and a failure to request tax returns from Mr Whittaker;
             2. use of Mr Whittaker’s tax file number
          2. a challenge to the validity of the decision (in 1994) to register the child support liability;
          100. the Registrar’s alleged failure to have regard to payments made by Mr Whittaker directly to the carer;
          4. negligent or bad faith imposition of penalties for non-payment; and
          5. the Registrar knew that no legal action had been taken to recover the liability.
     117. As to paragraphs 116(a) and (b), the respondents contend that there is an Anshun estoppel and/or that the time for challenging these administrative decisions is now passed [sic]. In any event, no error has been established.
          
     118. As to paragraph 116(c), the Registrar has taken into account non-agency payments in accordance with the legislation.
          
     119. As to paragraph 116(d), there is no basis whatsoever for the assertion that penalties imposed were imposed negligently or in bad faith.
          
     120. As to paragraph 116(e), even if it were true that no recovery action had been taken, that would not be decisive. In any event, it is not true.
          

The reference to an estoppel based on Port of Melbourne Authority v Anshun Proprietary Limited [1981] HCA 45; (1981) 147 CLR 589 is a reference to proceedings previously brought by Mr Whittaker: see Whittaker v Child Support Registrar [2000] FCA 1733; (2000) 106 FCR 105; Whittaker v Child Support Registrar [2002] FCA 1430; Whittaker v Child Support Registrar [2002] FCA 1429 (there was an appeal from the latter decision to a Full Court of this Court in Whittaker v Child Support Registrar [2003] FCAFC 114 and an unsuccessful application to the High Court for special leave to appeal from that decision at [2004] HCA Trans 252).

(j) Challenge to the validity of Part VA of the Collection Act

305. The applicants submit in essence that s 72D of the Collection Act confers the judicial power of the Commonwealth on the Registrar contrary to Ch III of the Constitution and that it is therefore invalid. Notices were given under s 78B of the Judiciary Act 1903 (Cth).
306. In Luton v Lessels [2002] HCA 13; (2002) 210 CLR 333 the High Court rejected a challenge to the validity of the legislative scheme for the assessment and enforcement of child support liabilities contained in the Assessment Act and the Collection Act. In that case there were two grounds of challenge. The first was that the scheme involved the imposition of taxation contrary s 55 of the Constitution. The second ground of challenge was that aspects of the legislation involved an attempt to vest the judicial power of the Commonwealth in the Registrar inconsistently with Ch III of the Constitution.
307. In para 26 of the FASOC the applicants give particulars of their challenge to the validity of Pt VA of the Collection Act as follows:
     1. Part VA of the [Collection Act] purports to authorise the [Registrar] to make an order prohibiting [Mr Whittaker] from departing Australia.
        
     2. The [Collection Act] provides no right of review of the decision under 72D other than an appeal under section 72Q.
        
     100. An appeal under section 72Q of the [Collection Act] does not give a Court sufficient grounds to set aside a [DPO].
          
308. The High Court has often noted the difficulty in framing an exhaustive definition of judicial power, although particular features of judicial power have been identified: see Attorney–General for the Commonwealth of Australia v Alinta Limited [2008] HCA 2; (2008) 233 CLR 542 (Alinta); Precision Data Holdings Limited v Wills [1991] HCA 58; (1991) 173 CLR 167 at 188-189 (Precision Data). At the core of judicial power lies the power to make a binding and authoritative adjudication as to what are the existing rights and obligations of the parties (“existing” and “pre-existing” are used interchangeably in this area of discourse): see The Waterside Workers’ Federation of Australia v JW Alexander Limited [1918] HCA 56; (1918) 25 CLR 434 at 463 (Isaacs and Rich JJ); The Queen v The Trade Practices Tribunal; Ex parte Tasmanian Breweries Proprietary Limited [1970] HCA 8; (1970) 123 CLR 361 at 396 (Windeyer J); Re Ranger Uranium Mines Proprietary Limited; Ex parte Federated Miscellaneous Workers’ Union of Australia [1987] HCA 63; (1987) 163 CLR 656 at 665-666; Huddart, Parker and Co Proprietary Limited v Moorehead [1909] HCA 36; (1908) 8 CLR 330 at 357; Alinta at [152] (Crennan and Kiefel JJ); Luton v Lessels at [22] (Gleeson CJ); [76] (Gaudron & Hayne JJ); [126] (Kirby J); [189] (Callinan J – “Ninthly, does the decision relate to pre-existing rights and obligations, or does it create new ones?”).
309. In Luton v Lessels, Gleeson CJ said that the exercise by the Registrar of the powers referred to in ss 31(2), 36, 37 and Pt 6A of the Assessment Act did not involve the exercise of judicial power because it did not involve a determination of pre-existing rights and obligations but the creation of new ones for the future. In relation to the Collection Act, in particular, the Chief Justice said that the registration of the child support liability did not involve a binding and conclusive determination of existing rights and liabilities. Of immediate pertinence, the Chief Justice also stated (at [27]):

The Registrar is involved in various ways in the collection and recovery mechanisms. These mechanisms include garnishment of wages and salaries. These functions do not involve the exercise by the Registrar of judicial power [citing Re Registrar, Social Security Appeals Tribunal; Ex parte Townsend [1995] HCA 32; (1995) 69 ALJR 647 at 650; [1995] HCA 32; 130 ALR 163 at 167, per Toohey J].

310. Justices Gaudron and Hayne discussed the challenge on the ground of judicial power at [62]-[78], but chiefly in respect of the Assessment Act.
311. Justice McHugh agreed with Gleeson CJ.
312. In separate judgments, Kirby J and Callinan J came to the same conclusion. One matter noted by Kirby J (at [129]) and Callinan J (at [199]) (and see also Gaudron and Hayne JJ at [67]) was that the scheme did not provide for enforcement of assessments by the Registrar; cf enforcement by a court’s own officials, bailiffs and sheriffs acting under specific court orders authorising such curial processes as forfeiture, seizure, arrest, execution and sale.
313. Certain features of the Collection Act combine to show that the making of a DPO is an administrative act.
314. First, by reason of the DPO, the person subject to it becomes subject to a new obligation, not suggested by any existing rights or obligations, not to depart from Australia without a DAC: see s 72F. The Registrar’s making of the DPO is the factum which enlivens the prohibition created by s 72F.
315. Second, it is true that the Registrar is required to be satisfied that the person has a child support liability (s 72D(1)(a)), but the fact that a decision maker must form an opinion as to the existence of such a liability as a step in arriving at the ultimate conclusion on which to base his or her order regulating the future rights and obligations of the person, does not mean that the decision-maker determines existing rights and obligations; cf Albarran v Companies Auditors and Liquidators Disciplinary Board (2007) 231 CLR 350 at [28] (Albarran); and see [321] below.
316. Third, under s 72D the Registrar may take the initiative and is not required to take a decision upon the application of another person.
317. Fourth, the Registrar makes a DPO as part of a wide ranging scheme, the principal objects of which are to ensure (see s 3 of the Collection Act):
     • that children receive financial support from their parents;
     • that parents pay on a regular and timely basis the periodic amounts payable by them towards the maintenance of their children; and
     • that Australia gives effect to its obligations under international agreements or arrangements relating to maintenance obligations arising from family relationship, parentage or marriage.
318. Fifth, a DPO is made in the interests of the child or children and in the public interest, not in the interests of one person claiming to have rights against a person said to be subject to a corresponding obligation.
319. Sixth, a DPO is not enforceable upon the making of it by the familiar curial process of execution and there are no sanctions or punitive consequences that operate upon the making of it. Thus, there is no final penalty imposed upon the person simply because the Registrar has made a DPO. In making a DPO, the Registrar is not deciding whether a person has contravened a provision of the Act and is not punishing a contravention.
320. Seventh, it is for the Court, in the independent exercise of judicial power, to determine whether the person has committed any of the following offences provided for in Pt VA of the Collection Act. A person who knowingly or recklessly contravenes a DPO commits an offence that attracts a maximum penalty of sixty penalty units, imprisonment for twelve months or both (s 72F). If an “authorised officer” requires a person to answer questions or produce documents for a specified purpose and the person, subject to one exception, fails to do so, the person is guilty of an offence and is punishable by a maximum fine of thirty penalty units: s 72U(3) and (4). If the person knowingly makes a false or misleading statement in response to such a request, the person commits an offence attracting a penalty of thirty penalty units or imprisonment for six months or both: s 72U(5).
321. Eighth, the fact that the making of a DPO may have a punitive or deleterious effect in the sense of inflicting hardship or detriment, does not make it an exercise of judicial power: Kamha v Australian Prudential Regulation Authority [2005] FCAFC 248; (2005) 147 FCR 516 (special leave to appeal to the High Court was refused: see [2006] HCATrans 420). In that case a Full Court of this Court held that the power given to the Australian Prudential Regulation Authority (APRA) to disqualify a person from acting as a director or senior manager of a general insurer, or holder of certain other positions, if satisfied that the person was not a fit and proper person was not a judicial power. For similar cases, see Albarran; Visnic v Australian Securities and Investments Commission [2007] HCA 24; (2007) 231 CLR 381.
322. Ninth, decisions by the Registrar under Part VA of the Collection Act are appealable under s 72Q; are open to direct challenge in proceedings under s 75(v) of the Constitution; and decisions under ss 72I, 72L and 72M are subject to review in the AAT: see s 72T of the Collection Act.
323. Tenth, in making a DPO the Registrar is required to take into account policy considerations. Under s 72D(1) the Registrar must not make a DPO unless he or she reasonably believes that it is “desirable” to do so for the purpose of ensuring that a person is prevented from departing from Australia without having made satisfactory arrangements to discharge the person’s child support liability. There are other provisions within Part VA that invoke such concepts as “desirable” and detriment to Australia’s interests in connection with decision-making by the Registrar: see ss 72I(3), 72L(3). One of the objects of the Act that the Registrar is entitled to take into account when deciding whether to make a DPO is the objective that children receive appropriate support from their parents; another is that Australia meets its international obligations in relation to maintenance obligations arising from family relationship and parentage. Such policy considerations must be balanced with other circumstances – a task ill-suited to the judicial process. In the same context in Precision Data at 191, the High Court stated:

...where ... the function of making orders creating new rights and obligations is reposed in a tribunal which is not a court and considerations of policy have an important part to play in the determination to be made by the tribunal, there is no acceptable foundation for the contention that the tribunal ... is entrusted with the exercise of judicial power.

324. In my opinion, Part VA in general, and s 72D in particular, is not invalid on account of a purported vesting in the Registrar of the judicial power of the Commonwealth.
325. I note that the applicants make the following additional submission which seems intended to go to the validity of Part VA:

The principal question is whether Part VA achieves a purpose which is proportional or reasonably capable of being seen as reasonably necessary for the purposes of debt recovery, absent the obtaining of a judgment...

This extract occurs in para 11 of the Applicants’ written submissions dated 13 August 2009 headed “Constitutional issues”.

326. I find it difficult to understand the submission. It seems to assume that “debt recovery” is a head of power of the Commonwealth Parliament by reference to which Part VA is to be supported. There is no such head of power. Heads of legislative power that support Part VA are to be found in ss 51(xxii), 51(xxxvii), 51(xxxix) and 122 of the Constitution.
327. In the alternative, the submission quoted may be seen as a non-justiciable attack upon an aspect of the policy underlying Part VA.

CONSIDERATION OF TWO FURTHER MATTERS

Objection to affidavit evidence – s 32 of the Evidence Act 1995 (Cth)

328. On the hearing, counsel for the applicants objected to the reading of certain affidavits on the ground that in making them, the deponents had used documents to revive their memory without the leave of the Court, contrary, so it was said, to s 32 of the Evidence Act 1995 (Cth) (Evidence Act). I ruled that the material was admissible subject, of course, to the question of the weight to be accorded to it, and said that I would publish reasons for that ruling. To that end, I invited counsel to make written submissions refining and elaborating on the oral submissions that they made at the time. They did so.
329. The affidavits in question were those of:

1. Nigel Jarvis made on 20 July 2009

2. Mohamad Khier made on 22 July 2009

3. Komran Mangkuwerdojo made on 14 July 2009

4. Stuart Lokhee made on 16 July 2009

5. Lori-Anne Mackay made on 17 July 2009

6. Megan Pitt made on 15 July

330. Each affidavit followed a generally similar form. The deponent stated that in preparing the affidavit he or she had refreshed his or her memory from a document, a copy of which was attached to the affidavit (Federal Agent Mackay stated that a copy of the notes to which she had referred was annexed to the affidavit of Federal Agent Lokhee). For example, the affidavit of Federal Agent Lokhee stated:
     2. Prior to the preparation of this affidavit, in order to refresh my memory of relevant events, I have consulted the notes made in the Police Real-time Online Management Information System (PROMIS) on 16 February 2008 by the AFP Operations Coordination Centre (AOCC) and Federal Agent Lori Mackay (FA Mackay). A copy of these notes are [sic] annexed hereto and marked with the letter “A” ...
        
     3. I have also consulted the notes I made in my notebook. A copy of these notes is annexed hereto and marked with the letter “B” ...
        
331. In the case of each affidavit, the deponent did not attempt to disclose the extent of his or her recollection of the events deposed to, unaided by the documents.
332. In each case the objection was to all of the material in the affidavit that was the subject matter of the document, and that related to the events of 15 or 16 February as relevant to the witness.
333. The objections were founded on s 32 of the Evidence Act, which, with s 34 of that Act, provides as follows:

32 Attempts to revive memory in court

(1) A witness must not, in the course of giving evidence, use a document to try to revive his or her memory about a fact or opinion unless the court gives leave.

(2) Without limiting the matters that the court may take into account in deciding whether to give leave, it is to take into account:

(a) whether the witness will be able to recall the fact or opinion adequately without using the document; and
(b) whether so much of the document as the witness proposes to use is, or is a copy of, a document that:

(i) was written or made by the witness when the events recorded in it were fresh in his or her memory; or
(ii) was, at such a time, found by the witness to be accurate.

(3) If a witness has, while giving evidence, used a document to try to revive his or her memory about a fact or opinion, the witness may, with the leave of the court, read aloud, as part of his or her evidence, so much of the document as relates to that fact or opinion.

(4) The court is, on the request of a party, to give such directions as the court thinks fit to ensure that so much of the document as relates to the proceeding is produced to that party. [My emphasis]

34. Attempts to revive memory out of court
    

(1) The court may, on the request of a party, give such directions as are appropriate to ensure that specified documents and things used by a witness otherwise than while giving evidence to try to revive his or her memory are produced to the party for the purposes of the proceeding.

(2) The court may refuse to admit the evidence given by the witness so far as it concerns a fact as to which the witness so tried to revive his or her memory if, without reasonable excuse, the directions have not been complied with.
[My emphasis]

Counsel for the applicants relied on the outright prohibition expressed in s 32, absent the leave of the Court.

334. The parts of s 32 that I have emphasised strongly suggest that the section’s concern is confined to the giving of oral evidence in Court. That this is so is reinforced by the contrast between the heading and subject matter of s 32 and those of s 34. While the section headings do not form part of the Evidence Act (see s 13(3) of the AI Act) they constitute extrinsic material that may be taken into account to resolve any ambiguity: s 15AB of the AI Act.
335. The dichotomy between refreshing memory in court and out of court reflects the Australian Law Reform Commission’s Report on Evidence: see Law Reform Commission, Evidence, Report No 26 (Interim) (1985) vol 1, paras 286-289, 614-616, and vol 2, cll 29 and 30 of the proposed Bill; and Law Reform Commission, Evidence, Report No 38 (1987) para 111(e), (f).
336. Section 52 of the Evidence Act, which is the first section in Pt 2.3, together with its heading, is as follows:

Adducing of other evidence not affected

This Act (other than this Part) does not affect the operation of any Australian law or rule of practice so far as it permits evidence to be adduced in a way other than by witnesses giving evidence or documents being tendered in evidence.

Chapter 2 of the Evidence Act is headed “Adducing evidence” and Pt 2.1 “Witnesses” and Pt 2.2 “Documents”. Neither the making nor the reading of an affidavit in court is a form of the adducing of evidence that is dealt with in these Parts. The reading of an affidavit in court is not, for example, the adducing of evidence of the contents of a document in question for the purposes of ss 47 and 48 of the Evidence Act. The Evidence Act does not apply to the reading of an affidavit in court, either because that Act is not a code or because s 52 expressly allows for the possibility of the adducing of evidence by the reading of affidavits – a process which is not “witnesses giving evidence or documents being tendered in evidence”: see Aneve Pty Limited v Bank of Western Australia Limited [2005] NSWCA 441 (Aneve) at [70] per Hodgson JA with whom Santow and Bryson JJA agreed.

337. In the present proceeding directions were made for the filing and service of affidavits of the evidence to be given at the trial. Implicitly, if not expressly, this was a direction or allowance for proof by affidavit at the trial as permitted by s 47(3) of the Federal Court of Australia Act 1976 (Cth). The direction or allowance was not subject to any condition and therefore contemplated the preparation and reading of affidavits in accordance with the usual practice.
338. I respectfully agree with the statement made by Hodgson CJ in Eq in Lindsay-Owen v Lake [2000] NSWSC 1046 (at [3]):

I would understand it to be the normal practice for affidavits and witness statements to be prepared in a process in which the witness is referred to and prompted by all available documents. I do not understand there to be any rule of law or professional ethics to the contrary. As I have said, s.32 does not appear to deal in any way with that process, because it only applies to what can happen in the course of a witness actually giving evidence.

339. In Aneve at [71] Hodgson JA remarked that the Evidence Act, like the common law, generally requires oral evidence in chief to be given in response to non-leading questions.
340. In the course of case management, where it becomes clear that there will be conflicting accounts of a conversation or other event, the Judge may think it desirable to direct that the evidence of the witnesses on that matter be given orally rather than by affidavit: see Federal Civil Litigation Precedents (LexisNexis Butterworths as at September 2009) at [38,010]; and Aneve at [71].
341. In the present case, the affidavits had been made and the deponents’ memories already refreshed out of court before the objection was taken. The documents from which memory had been refreshed had been made available to the other party, copies having been annexed to the affidavits, and so the purpose of s 34 of the Evidence Act had been satisfied.
342. It sufficed as the ground for disallowing the objection in the way in which the objection was put, that s 32 simply had no application.
343. At a directions hearing, various considerations may be relevant to the decision whether to permit evidence to be given on the final hearing by affidavit or to require that it be given orally. Those considerations include the nature of the evidence; whether the case is one of conflict between witnesses or simply of one party wishing to test the extent of the independent recollection of a witness as a factor going to weight; whether the witness’s memory has already been refreshed from the document or documents; whether the witness occupied an official position and the event was one of many of which the witness cannot reasonably be expected to have an independent recollection (see the evidence of Federal Agent Mackay referred to at [170] above); and the time lapse between the event and the likely date of trial.

Making of the DPO – absence of original DPO

344. In his written submissions counsel for applicants attacks the procedure that was followed by which the DPO is said to have been made. The end point of the submission is that the DPO was “made without authority or not at all” (para 14).
345. Counsel elaborated on this submission orally. He asserted that the evidence of Mr Wearne showed, or I should infer, that:
     • “there [was] no original departure prohibition order on the file or at all”;
     • the DPO, such as it was, was in a computer system at the CSA and had been created there by a piecing together of a template computerised form of DPO and a scanned signature of the Registrar’s delegate, Glenda Scott; and
     • Mr Wearne or his superior officer, Mr Tanner, without authority, combined electronically the scanned signature and the template to enable a form of DPO to be printed out, a copy of which is annexure “D” to Mr Wearne’s affidavit.
346. The submission is a surprising one. Annexure D to Mr Wearne’s affidavit was a document that Mr Wearne deposed was a copy of the DPO that Ms Scott had signed. It purported to bear the signature “G Scott” above the words “Delegate of the Registrar of the Child Support Agency”. It bore in handwriting the date “6/12/06”.
347. The present attack on the validity of the DPO was not pleaded, and cannot be seen as a further aspect of any ground of attack that was pleaded, such as a failure to accord natural justice, a failure to serve notice of the making of the DPO, or bad faith.
348. Subsection (3) of s 72D provides that a DPO must be in the approved form, and s 72X defines “approved form” to mean a form approved by the Registrar for the purposes of the provision in which the expression appears. It is not suggested or sought to be proved that the form of DPO annexed to Mr Wearne’s affidavit was not, in terms of its content, in a form approved by the Registrar for the purposes of s 72D(3). Rather, counsel for Mr Whittaker submits that the DPO “could not have been made in the approved form” because it was a “scissors and paste job”.
349. I do not see why an electronic form of a DPO cannot manifest the approved form. The approved form is a reference to content and setting out, not physical manifestation. Subsections (4) and (5) of s 72G (set out at [16] above) provide that the Registrar must give to various persons “a copy of the [DPO]”. Let it be assumed that the “original” is in computerised form only. I do not see why a print out from the computer would not satisfy the word “copy” in these subsections.
350. Counsel’s submission turns on the evidence of Mr Wearne. As noted earlier, since 6 November 2006 he had worked as a member of the CSA DPO Team in Perth, having worked for the CSA since 14 October 2004. He was allocated Mr Whittaker’s case on 5 December 2006. Paragraphs 12 and 13 of his affidavit are as follows:
     12. My recollection is that, on 6 December 2006, once the delegate had made the DPO, she contacted me by phone to advise that the DPO for Mr Whittaker had been made and was ready for collection. I made a photocopy of the DPO that the delegate had signed. Annexed hereto and marked with the letter “D” is a copy of the DPO.
         
     13. I placed the original DPO and DPO Submission (annexure C) for Mr Whittaker signed by the delegate were [sic] in a folder belonging to the delegate’s Executive Assistant.
         

Apparently the word “were” was included erroneously.

351. Counsel for the applicants submits that I should not accept paras 12 and 13 in the light of the cross-examination of Mr Wearne. Counsel submits that the answers that Mr Wearne gave in cross-examination show that the “order” was put together according to a template within the CUBA system (which Mr Wearne described as “the operating system that stores all the files”) and that either Mr Wearne or his superior officer, Sean Tanner, Service Manager in the DPO area in Perth, both of whom had access to the scanned signature of Ms Scott, entered the filled in template and scanned signature into CUBA.
352. In cross-examination, Mr Wearne said that it was incorrect to say that the DPO was made only in electronic form and was not in fact signed by the purported signatory. He said that he had with him in the witness box (in Perth – he testified by video) “a copy of the Original Departure Prohibition order”. Later he said that he also had with him in the witness box a copy of his “Submission [to Ms Scott] for Approval to issue a Departure Prohibition Order – under the CSR&C Act, Section 72D”, which he said he made on 6 December 2006, and a copy of the DPO notice, being a scanned copy of the original that was signed by Ms Scott and dated 6 December 2006. No doubt this last reference was to the letter of that date from Ms Scott to Mr Whittaker advising him that Ms Scott had issued a DPO and enclosing a copy, a copy of which letter was Annexure E to Mr Wearne’s affidavit. Mr Wearne described the original DPO that he said he had with him in the witness box as being “signed by Glenda Scott who was the Registrar at the time.” It should be noted that when this document was produced, apparently it transpired that it was a copy of annexure D to Mr Wearne’s affidavit.
353. In the light of Mr Wearne’s evidence, I have great difficulty in finding any force in counsel’s submission.
354. I note in passing that reg 13 of the Regulations provides as follows:

(1) A certificate, notice or other document bearing the written, printed or stamped name (including a facsimile of the signature) of a person who is, or was at any time, the Registrar or a delegate of the Registrar in place of that person’s signature must, unless it is proved that the document was issued without authority, be taken to have been duly signed by that person.

(2) Judicial notice must be taken of the names and signatures of the persons who are, or were at any time, the Registrar or a delegate of the Registrar.

The copy of the signature “G Scott” appears to be a facsimile of the signature of Glenda Scott, a delegate of the Registrar. I am not sure that counsel makes a submission that needs to be answered by reg 13, but it is desirable that that regulation be noted.

355. I accept paras 12 and 13 of Mr Wearne’s affidavit as truthful and reliable evidence. His evidence in those paragraphs and in cross-examination is that there was and is an original DPO in the form of Annexure D to his affidavit which Ms Scott personally signed. I find that there was.

CONCLUSION

356. For the above reasons the proceeding will be dismissed with costs.
     

I certify that the preceding three hundred and fifty-six (356) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren

Associate:

Dated: 5 February 2010