Borwick v SSAT Principal Members & Ors (SSAT Appeal) [2011] FMCA 1039 (25 November 2011)

Last Updated: 15 February 2012

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BORWICK v SSAT PRINCIPAL MEMBERS & ORS (SSAT APPEAL)

[2011] FMCA 1039

ADMINISTRATIVE LAW – Child Support appeal – costs.

Administrative Appeals Tribunal Act 1975, s.44(1) Child Support (Registration and Collection) Act 1988, s.110B

Federal Proceedings (Costs) Act 1981, ss.3(ga), 7, 7A

Applicant:

MR BORWICK

First Respondent:

SSAT PRINCIPAL MEMBERS

Second Respondent:

COMMONWEALTH OF AUSTRALIA

Third Respondent:

MS PLANT

Fourth Respondent:

SOCIAL SECURITIES APPEALS TRIBUNAL

File Number:

BRG 688 of 2011

Judgment of:

Jarrett FM

Hearing date:

25 November 2011

Date of Last Submission:

25 November 2011

Delivered at:

Brisbane

Delivered on:

25 November 2011

REPRESENTATION

Solicitor for the Applicant:

Mr Evans

Solicitors for the Applicant:

Evans & Company

Counsel for the First, Second & Fourth Respondents:

Ms Kidson

Solicitors for the First, Second & Fourth Respondents:

Australian Government Solicitor

No appearance by the Third Respondent

ORDERS

(1) The Applicant be granted leave to amend the Amended Application for an Order of Review, filed 12 September, 2011, (“the Application”) by the substituting the words “the Fourth Respondent” for the words “the First Respondent” where those words first appear on page 2 of the Application.
(2) The Application be allowed, and in that regard:

• (a) The decision of the Fourth respondent made on 17 November 2010 to remove the applicant as a party to the review proceeding before the Fourth respondent is set aside; and
• (b) The decision of the fourth respondent made on 10 January 2011 pursuant to s.103S of the Social Security (Administration) Act 1999 is hereby set aside and the matter is remitted to the Fourth respondent for re-hearing according to law.

(3) Each party is to bear their own costs of and incidental to the application.

IT IS NOTED that publication of this judgment under the pseudonym Borwick v SSAT Principal Members & Ors (SSAT Appeal) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE

BRG 688 of 2011

MR BORWICK

Applicant

And

SSAT PRINCIPAL MEMBERS

First Respondent

COMMONWEALTH OF AUSTRALIA

Second Respondent

MS PLANT

Third Respondent

SOCIAL SECURITIES APPEALS TRIBUNAL

Fourth Respondent

REASONS FOR JUDGMENT

(ex tempore – revised from the transcript)

1. In respect of costs, the basal proposition that concerns me is that having been successful in the application, the applicant ordinarily ought to have his costs. The Commonwealth is in a unique position in the sense that it has adopted the position of contradictor. Ordinarily on an application like this the decision maker, the administrative decision maker takes no part in the proceedings. That is what has occurred in this case, but to provide a proper contradictor, the Commonwealth has stepped into the breach. The respondent payee has not participated in any meaningful way.
2. It is the case that the point on which this application has succeeded is not a point that was foreshadowed much before the final hearing. The factual basis for the ultimate contention was identified, but identified in a different context. It was identified in the proceedings that are before this Court in its child-support jurisdiction, in that in opposition to the suggestion that these proceedings needed to be commenced, the applicant argued that the decision to be reviewed was in fact a decision of the SSAT rather than a decision of the principal member, whereas what was being argued by those representing the respondents in the child-support proceedings was that the decision was one of the principal member and not the SSAT, and so s.110B – I think it is – of the Child Support (Registration and Collection) Act 1988 was not engaged and it was necessary to bring proceedings under the Administrative Decisions (Judicial Review) Act 1977.
3. I observed earlier that there is some artificiality in the notion that the same solicitors, the Australian Government Solicitor, could represent all of the respondents including the Child Support Registrar and Commonwealth, and yet seek to draw the distinctions that have been sought to be drawn. But ultimately I find that argument persuasive.
   It is the case that it is necessary in an application like this to have a proper contradictor. It is the case that the Commonwealth stepped in to take the position of proper contradictor. It is the case that the Commonwealth has made appropriate concessions as soon as it has become apparent that those concessions ought to have been made.
4. It is not the case that the basis upon which the concessions have been made were clearly and expressly articulated before very recently. It is not the case that the appeal has been successful on a point which has been argued all along. In those circumstances I am not satisfied that there ought to be an order for costs.
5. Yet, that is an unfortunate position for the applicant and it leads me to make one other comment, more for the purposes of the Legislature than anything else.
6. The Federal Proceedings (Costs) Act 1981 makes provision for appellants in appeals to receive cost certificates in certain circumstances.
7. Whilst I am not presently dealing with an appeal – I am dealing with an application under the ADJR Act – the other application pending before me and connected with this matter is an appeal under the Child Support (Registration and Collection) Act 1988 (although an appeal to the original jurisdiction of the Court rather than any appellate jurisdiction). A similar appeal regime exists under the Administrative Appeals Tribunal Act 1975, and appeals from the AAT go to the Federal Court under s.44(1) of that Act. Those appeals can be, and often are transferred to this court for determination.
8. The definition of “Federal appeal” in s.3 of the Federal Proceedings (Costs) Act 1981 contains subparagraph (ga) to this effect:

Federal appeal means:

(ga) an appeal that is:

(i) from a decision of the Administrative Appeals Tribunal,; and
(ii) heard and determined, or to be heard and determined in the Federal Magistrates Court.

9. Thus in cases under s.44(1) of the AAT Act that succeed on an error of law, an appeal costs certificate might be granted to a successful appellant: s.7A of the Federal Proceedings (Costs) Act 1981. Alternatively circumstances might exist to justify the making of an order for a costs certificate pursuant to s.7 of that Act.
10. That the same regime does not exist in respect of SSAT appeals seems to be anomalous. There are many parallels between the SSAT appeals and appeals under s.44(1) of the AAT Act. Those parallels have been pointed out in a number of decisions of this Court that deal with the nature and extent of SSAT appeals pursuant to s.110B of the Child Support (Registration and Collection) Act 1988. It seems anomalous that the relief that might be granted under the Federal Proceedings (Costs) Act 1981 may not be available to a successful appellant or unsuccessful respondent in an SSAT appeal. It could only be, it seems to me, an oversight.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Jarrett FM

Date: 11 January 2012