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Davis v Insolvency and Trustee Service Australia (No 3) [2010] FCA 69 (12 February 2010)

Last Updated: 16 February 2010

FEDERAL COURT OF AUSTRALIA


Davis v Insolvency and Trustee Service Australia (No 3) [2010] FCA 69


Citation:
Davis v Insolvency and Trustee Service Australia (No 3) [2010] FCA 69


Parties:
PETER LEWIS DAVIS v INSOLVENCY AND TRUSTEE SERVICE AUSTRALIA , CHILD SUPPORT REGISTRAR, MAGISTRATES OF NEW SOUTH WALES and DC BEALE, MJ HORTON AND AJ MCMINN AS TRUSTEES OF THE ESTATE OF THE LATE DR ERIC L DAVIS


File number:
NSD 52 of 2009


Judge:
FOSTER J


Date of judgment:
12 February 2010


Catchwords:
PRACTICE AND PROCEDURE – summary dismissal of judicial review proceedings relating to child support orders made by a Local Court of NSW in 2005 – causes of action relied upon have no reasonable prospects of succeeding – proceedings dismissed pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth)


Legislation:


Cases cited:
Davis v Insolvency and Trustee Service Australia (No 1) [2009] FLC 98-038, [2009] FCA 562, [2009] ALMD 4410 related
Davis v Insolvency and Trustee Service Australia (No 2) [2009] FCA 589 related
Adsteam Harbour Pty Ltd v Registrar of the Australian Register of Ships [2005] FCA 1324 followed
Airservices Australia v Canadian Airlines International Ltd (1999) 202 CLR 133 followed
Breavington v Godleman [1988] HCA 40; (1987) 169 CLR 41 followed
Commonwealth v Mewett [1997] HCA 29; (1997) 191 CLR 471 followed
Guthrie v ANZ Banking Group Ltd (1991) 23 NSWLR 672 followed
Federated Sawmill, Timberyard and General Woodworkers’ Employees’ Association v Alexander [1912] HCA 42; (1912) 15 CLR 308 followed
Flanagan v Australian Prudential Regulation Authority [2004] FCA 1321; (2004) 138 FCR 286 followed
Luton v Lessels [2002] HCA 13; (2002) 210 CLR 333 applied
Ly v Jenkins [2001] FCA 1640; (2001) 114 FCR 237 followed
Meriton Apartments Pty Ltd v Industrial Court of New South Wales [2008] FCAFC 172; (2008) 171 FCR 380 applied
Mutual Pools & Staff Pty Ltd v The Commonwealth [1994] HCA 9; (1994) 179 CLR 155 applied
Nintendo Co Ltd v Centronics Systems Pty Ltd [1994] HCA 27; (1994) 181 CLR 134 cited
Peacock v Newtown Marrickviile General Co-Operative Building Society No 4 Ltd [1943] HCA 13; (1943) 67 CLR 25 followed
Wang v Anying Group Pty Ltd [2009] FCA 1500 followed
White Industries Aust Ltd v Federal Commissioner of Taxation [2007] FCA 511; (2007) 160 FCR 298 followed

Butt, Land Law (5th ed, 2006)


Date of hearing:
29 May 2009


Place:
Sydney


Division:
GENERAL DIVISION


Category:
CATCHWORDS


Number of paragraphs:
66


Counsel for the Applicant:
Mr PE King


Solicitor for the Applicant:
McKells Solicitors


Solicitor for the Second Respondent:
Mr N Gouliaditis of Australian Government Solicitor


Solicitor for the First and Third Respondents:
The First and Third Respondents submitted save as to costs



The Fourth Respondents did not appear

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 52 of 2009

BETWEEN:
PETER LEWIS DAVIS
Applicant

AND:
INSOLVENCY AND TRUSTEE SERVICE AUSTRALIA
First Respondent

CHILD SUPPORT REGISTRAR
Second Respondent

MAGISTRATES OF NEW SOUTH WALES
Third Respondent

DC BEALE, MJ HORTON AND AJ MCMINN AS TRUSTEES OF THE ESTATE OF THE LATE DR ERIC L DAVIS
Fourth Respondents

JUDGE:
FOSTER J
DATE OF ORDER:
12 FEBRUARY 2010
WHERE MADE:
SYDNEY

THE COURT ORDERS THAT:


  1. The applicant’s Notice of Motion filed on 25 May 2009 be dismissed.
  2. The applicant pay the second respondent’s costs of and incidental to that Motion.
  3. Pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth), this proceeding be dismissed.
  4. The applicant pay the second respondent’s costs of and incidental to the proceeding.
  5. There be no orders as to the costs of the first, third or fourth respondents.

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 52 of 2009

BETWEEN:
PETER LEWIS DAVIS
Applicant

AND:
INSOLVENCY AND TRUSTEE SERVICE AUSTRALIA
First Respondent

CHILD SUPPORT REGISTRAR
Second Respondent

MAGISTRATES OF NEW SOUTH WALES
Third Respondent

DC BEALE, MJ HORTON AND AJ MCMINN AS TRUSTEES OF THE ESTATE OF THE LATE DR ERIC L DAVIS
Fourth Respondents

JUDGE:
FOSTER J
DATE:
12 FEBRUARY 2010
PLACE:
SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

  1. On 29 May 2009, I delivered judgment in Davis v Insolvency and Trustee Service Australia (No 1) [2009] FLC 98-038, [2009] FCA 562, [2009] ALMD 4410 (Davis No 1). That judgment was delivered in these proceedings and determined various claims made by the applicant for interlocutory injunctive relief. In that judgment, I refused to grant any injunction. In these Reasons for Judgment I deal with the Notice of Motion filed by the second respondent (the Registrar) on 24 March 2009 whereby the Registrar sought an order that this proceeding be dismissed pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act).
  2. In the Introduction to Davis No 1, I said:
    1. The applicant (Mr Davis) has three children. In 2005, Mr Davis was required to pay arrears of maintenance in respect of one or more of his children and was also subjected to a costs order in respect of proceedings in the Family Court of Australia (the Family Court).
    2. On 20 January 2009, Mr Davis commenced the current proceedings. In the proceedings, Mr Davis claims by way of final relief a declaration that certain orders made by a NSW Local Court Magistrate on 8 November 2005 (the Local Court orders) “are invalid and of no effect”. He also claims consequential and ancillary relief. Mr Davis also seeks to set aside the Local Court orders by invoking principles of judicial review. In general terms, the Local Court orders were by way of enforcement of the maintenance liabilities incurred by Mr Davis and of the Family Court order for costs made against him. The Local Court orders are expressed to have been made by consent. It is common ground between Mr Davis and the second respondent (the Registrar) that this was not the fact. The orders were not made by consent.
    3. At a Directions Hearing held on 25 March 2009, I fixed for hearing at 10.15 am today an application made by the Registrar for an order pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) that the whole of the proceedings be dismissed. The hearing of that Motion would have been fixed at an earlier time had Mr Davis and his legal representatives been available.
    4. On 24 April 2009, at very short notice, I heard an application brought by Mr Davis for leave to amend his Application for a second time and for interlocutory injunctive relief. Mr Davis’ application for an interlocutory injunction was prompted by the fact that, by Notice dated 25 March 2009 (the Notice), the Registrar had purported to require payment to the Registrar, pursuant to s 72A of the Child Support (Registration and Collection) Act 1988 (Cth) (the Collection Act), of any moneys due to Mr Davis or becoming due to him from three named persons, DC Beale, MJ Horton and AJ McMinn (the Estate’s solicitors), up to the amount of $53,383.11 (being the amount due to the Registrar under the Local Court orders plus interest). At the time the Notice was issued, the Registrar believed that the Estate’s solicitors were the executors and trustees of the Will of the late Dr Eric Lewis Davis (Dr Davis), who was Mr Davis’ father, and that the estate would, in the future, be obliged to pay moneys to Mr Davis in his capacity as a residuary beneficiary under his late father’s Will. As the interlocutory hearing proceeded, it became clear that the named persons were not the executors and trustees under Dr Davis’ Will. Their true role was as the solicitors for the executor and trustee of that Will (Mr Graham John Cowley).
  3. In these Reasons for Judgment, I will adopt the same abbreviations as I adopted in Davis No 1.
  4. In Davis No 1, I granted leave to the applicant to amend his Application. He availed himself of that leave by filing a Further Amended Application on 1 June 2009.
  5. After I delivered judgment in Davis No 1, and after the applicant and his legal advisors had had an opportunity to read and consider my Reasons for Judgment in Davis No 1, the applicant applied for an order that I disqualify myself from hearing the Registrar’s summary dismissal Motion which was fixed for hearing that same day, 29 May 2009. I declined to disqualify myself (as to which see Davis v Insolvency and Trustee Service Australia (No 2) [2009] FCA 589. I then proceeded to hear the Registrar’s summary dismissal Motion.
  6. The case of the applicant which must be scrutinised in considering and determining that Motion is the case which he now propounds in his Further Amended Application filed on 1 June 2009.
  7. On 25 May 2009, the applicant filed a Notice of Motion in which he sought orders that the Registrar’s summary dismissal Motion be dismissed or, alternatively, that the hearing of that Motion be adjourned to some unspecified date in the future. In addition, in that Notice of Motion, the applicant sought directions for the further disposition of the Motion which he had filed in which he claimed the interlocutory injunctive relief to which I have already referred.
  8. At the commencement of the disposition of the matters before the Court on 29 May 2009, Counsel for the applicant submitted that I should proceed to hear the applicant’s Notice of Motion filed on 25 May 2009 before dealing with any other matter. I declined to take that course and indicated to Counsel that I would deal with that Motion at the same time as dealing with the Registrar’s summary dismissal Motion.
  9. Towards the end of the hearing, Counsel for the applicant and I discussed his client’s Notice of Motion filed on 25 May 2009. It was conceded by Counsel that he had had a fair opportunity to deal with that Notice of Motion during the course of his submissions and that it should be dealt with at the same time as the Registrar’s summary dismissal Motion. In the course of that discussion, the following was said:
HIS HONOUR: Mr King, earlier today you raised the notice of motion filed on 25 May and I ruled at that time that it should not be dealt with before your submissions, but rather during the course of your submissions. Given the orders which you have sought in that notice of motion, do you accept you have now dealt with those during the course of your submissions?
MR KING: Yes. The thrust of the motion was to dismiss the 31A application.
HIS HONOUR: Yes and to adjourn the proceedings pending disposition of the other matter which has now been disposed of.
MR KING: That’s correct, because our concern – or one of our concerns was that we didn’t want to be found in a situation where what we felt were legitimate questions in relation to the 72A notice were not able to be before the court on the 31A application.
HIS HONOUR: I understand that, but they’re clearly before the court.
MR KING: And I have addressed them.

  1. The applicant’s Notice of Motion filed on 25 May 2009 is misconceived. There is no need for the applicant to file a counter-Application in order to resist the Registrar’s application that the proceedings be summarily dismissed. Further, I refused an adjournment of the Registrar’s summary dismissal Motion at the commencement of the hearing before me on 29 May 2009 so that the requested adjournment had been denied at the outset.
  2. Finally, as far as far as the third order sought by the applicant in his Notice of Motion is concerned, there was no extant matter arising from his earlier Notice of Motion which could be the subject of further directions. I disposed of that Notice of Motion by the orders which I made on 29 May 2009 in Davis No 1.
  3. For these reasons, I propose to dismiss the applicant’s Notice of Motion filed on 25 May 2009 with costs. There will be orders accordingly.
  4. I will now turn to deal with the Registrar’s summary dismissal Motion.

THE RELEVANT PRINCIPLES (SUMMARY DISMISSAL)

  1. The Registrar relies on s 31A of the Federal Court Act as the source of power for the summary dismissal order which she seeks. Section 31A is in the following terms:
31A Summary judgment
(1) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is prosecuting the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.
(2) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is defending the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
(4) This section does not limit any powers that the Court has apart from this section.
(5) This section does not apply to criminal proceedings.

  1. In Wang v Anying Group Pty Ltd [2009] FCA 1500, I set out the principles which govern the exercise of the Court’s power pursuant to s 31A of the Federal Court Act. At [43] and [44], I said:
    1. The critical words of s 31A(1), when applied to the present case, require me to be satisfied that the respondents have “... no reasonable prospect of successfully defending the proceeding ...”. The following principles may be extracted from the authorities:
(a) The moving party does not have to demonstrate that the defence is hopeless or unarguable;
(b) The Court must consider the pleadings and the evidence with a “critical eye” in order to see whether the respondent party has evidence of sufficient quality and weight to be able to succeed at trial (Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60; (2008) 167 FCR 372 at [23] (p 382) (per Finkelstein J));
(c) The respondent party is not obliged to present its whole case in order to defeat the summary judgment applicant but must at least present a sufficient outline of the evidence in order to enable the Court to come to a preliminary view about the merits for the purpose of considering the statutory test in s 31A(1)(b) (Jefferson Ford Pty Ltd [2008] FCAFC 60; 167 FCR 372 at [22] (p 382) (per Finkelstein J)); and
(d) The test may require greater scrutiny of the pleadings and evidence in some cases than in others. In my judgment, the words of s 31A(1) compel a flexible approach. The real question in every case is not so much whether there is any issue that could arguably go to trial but rather whether there is any issue that should be permitted to go to trial. This seems to be the approach of Finkelstein J in Jefferson Ford Pty Ltd [2008] FCAFC 60; 167 FCR 372 and of Gordon J in the same case (as to which see [123]–[134] (pp 406–409)), although Rares J in that case at [73]–[74] (p 394) and in Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352; (2006) 236 ALR 720 esp at [45] (p 731) favoured a test which is much closer to the older test articulated in authorities decided under Rules of Court expressed in terms different from the language of s 31A(1)).
  1. I agree with the helpful summary of the relevant principles given by Gilmour J in Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955 where, at [5] and [6] of his Honour’s Reasons, his Honour said:
Section 31A of the Act
  1. Section 31A lowers the bar for obtaining summary judgment: White Industries Australia Ltd v Commissioner of Taxation [2007] FCA 511; (2007) 160 FCR 298. The second reading speech of the Migration Litigation Reform Bill 2005 which introduced s 31A stated that its purpose was to strengthen “the power of the courts to deal with unmeritorious matters by broadening the grounds on which federal courts can summarily dispose of unsustainable cases”: Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352; (2006) 70 IPR 146 at [45]; Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60 at [124].
  2. Success under s 31A does not require a demonstration that the case is hopeless or bound to fail. The following principles are of general application to an application under s 31A:
(a) the Court must be very cautious not to do a party an injustice by summarily dismissing proceedings;
(b) the Court ought not dismiss a claim based on a predictive assessment of prospects, where it is possible that if the claim went to trial, it may succeed;
(c) in a case where evidence can give colour and content to allegations, and where questions of fact and degree are important, the Court should be more reluctant to dismiss a proceeding on the face of a pleading;
(d) it is not Parliament's intention to require the Court to engage in lengthy and elaborate trials on an interlocutory basis for the purposes of determining whether or not a proceeding has no reasonable prospects of success. It may be necessary for the opposing party to provide no more than an outline of evidence, sufficient to show that there is a genuine dispute, to prevent the summary application becoming a trial;
(e) if there is a real issue of fact or law to be decided, and the rights of the parties depend upon it, it is obviously appropriate that the matter goes to trial. It cannot be said that where there is a real factual dispute and that factual dispute must be resolved to determine whether the claim succeeds that there is ‘no reasonable prospect of success’;
(g) it ought not be used to shut out proceedings where, on a proposition of law, there may be room for doubt. On questions of law, an inquiry as to their merit should not be for the purpose of resolving them and also not simply to determine whether the argument is hopeless, but in order to decide if it is sufficiently strong to warrant a trial;
(h) evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects;
(i) in determining if there are real issues of fact in issue so as to preclude summary judgment the courts must draw all reasonable inferences in favour of the non-moving party.
See Genovese v BGC Construction Pty Ltd [2007] FCA 923 at [5]; Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352; (2006) 70 IPR 146 at [42]- [48]; Hicks v Ruddock [2007] FCA 299; (2007) 156 FCR 574 at [13]; Bond v Barry (2007) 73 IPR 490 at [46]; Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd (in Liq) (formerly Stanley Thompson Valuers Pty Ltd) [2006] FCA 1416 at [30]; Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 at [21]; Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited [2008] FCAFC 60.

  1. Other judges of this Court have used slightly different language to describe the onus which an applicant for summary judgment carries in this Court. For example, Lindgren J in White Industries Aust Ltd v Federal Commissioner of Taxation [2007] FCA 511; (2007) 160 FCR 298 at [59] said that the phrase ... no reasonable prospect of success ... requires attention to be given to real, as distinct from “fanciful” or “merely arguable” prospects.
  2. At [54] in the same case, Lindgren J said:
Under s 31A I must be satisfied that the applicants have no reasonable prospect of success, but as s 31A(3) makes clear, this does not mean that I must be satisfied that the proceeding is hopeless or bound to fail. I suggest that the legislature’s intention in enacting s 31A was to lower the bar for obtaining summary judgment (including summary dismissal) below the level that had been fixed by such authorities as Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 at 91-92, and General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 129-130: see Lawrenson Light Metal Die Casting Pty Ltd (in liq) v Cosmick Pty Ltd [2006] FCA 753 at [15].

  1. I propose to apply the above principles to the present case.

THE APPLICANT’S CASE

  1. In his Further Amended Application, the applicant seeks relief by way of the Constitutional writs pursuant to s 39B(1A) of the Judiciary Act 1903 (Cth) (the Judiciary Act) and ss 5, 6 and 8 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) the ADJR Act). He also makes reference to what he describes as the general law pursuant to the Court’s pendent or associated jurisdiction. It is reasonably clear that the applicant seeks judicial review of the Local Court orders (as to which, see the extract from Davis No 1 at [2] above) and challenges the effect and validity of transactions entered into based upon those orders. Unfortunately, the applicant has failed to specify in his Application the grounds upon which he seeks that review.
  2. In his claims for relief, the applicant claims a declaration that the Local Court orders are invalid and of no effect and an order setting aside those orders. His contention is that those orders were made without jurisdiction or power. It seems that the other relief claimed by the applicant is consequential upon this fundamental attack upon the Local Court orders. Prominent amongst the consequential relief claimed is relief designed to protect the applicant’s former interest in certain real property in Queensland, namely, the property known as 20 St Kevins Avenue Benowa QLD (the Queensland property) together with orders restraining the first respondent and the Registrar from selling or otherwise disposing of that property. I will explain the relevance of that claim for relief later in these Reasons.
  3. The second important consequential matter is the challenge by the applicant to the validity of a Notice to Pay Money issued by the Registrar pursuant to s 72A of the Collection Act dated 25 March 2009 served upon the fourth respondents on 30 March 2009.
  4. The applicant’s arguments may be summarised as follows:

(a) The Magistrate who made the Local Court orders had no jurisdiction or power to make orders in respect of real property situated in Queensland;

(b) That Magistrate had no jurisdiction or power to make orders in relation to the Queensland property without making Ms Lau (the former joint tenant), who is now the applicant’s wife, a party to the proceedings;

(c) The Magistrate who made the Local Court orders had no power to exercise summary Federal jurisdiction; and

(d) The Commonwealth laws pursuant to which the Local Court orders were made are invalid because they contravene s 51(xxxi) of the Constitution.

  1. In oral submissions, Counsel for the applicant contended that s 72A of the Collection Act was invalid. He also submitted that the conferral of Federal jurisdiction on the Local Court of NSW, which is a court of limited jurisdiction, is ineffectual because that conferral is subject to the overriding principle that the Commonwealth must take the State court as it finds it. It was submitted that the Commonwealth cannot confer an alien function, or make the State court a different kind of court from that which it finds at the point of conferral.
  2. The applicant also contended that, when the first respondent became registered on the title to the Queensland property and thus severed the joint tenancy between the applicant and Ms Lau thereby converting the prior ownership into a tenancy in common between the first respondent and Ms Lau, those actions constituted an acquisition of property otherwise than on just terms. It was said that this rendered the relevant legislation invalid and the actions pursuant to it of no effect.

THE RELEVANT STATUTORY PROVISIONS

  1. At [14]–[25] in Davis No 1, I described and explained the relevant statutory scheme. I will not repeat what I said in those paragraphs in these Reasons for Judgment. However, I incorporate the observations which I made in the earlier judgment into these Reasons for Judgment.
  2. In the course of explaining the relevant legislation in Davis No 1, I referred to Luton v Lessels [2002] HCA 13; (2002) 210 CLR 333. I noted that, although no argument was advanced in Luton [2002] HCA 13; 210 CLR 333 that the scheme was invalid because it could not be supported by s 51(xxxi) of the Constitution, at least two members of the Court (Gleeson CJ and McHugh J) expressly held that the legislation was supported by the powers conferred by s 51(xxii), (xxxvii) and (xxxix) and s 122 of the Constitution. The remaining members of the Court in Luton [2002] HCA 13; 210 CLR 333 proceeded upon the basis that the legislation was valid.

THE RELEVANT FACTS

  1. At [26]–[47] in Davis No 1, I set out a summary of the relevant facts as they were established before me for the purposes of determining the Application with which I was dealing in those Reasons for Judgment. Subject to one or two additions and alterations, that summary holds good for the purpose of determining the Registrar’s summary dismissal Motion. I set out below [26]–[47] from Davis No 1:
    1. At some time prior to 8 November 2005, the amount of $27,629.11 became a registrable maintenance liability of Mr Davis within the meaning of that expression as used in the Collection Act. That amount comprised $18,997.80 in arrears of child support and $8,631.31 in late payment penalties. There was no direct and clear evidence before me which established the circumstances in which that liability arose. The most likely circumstances were that, in maintenance proceedings brought by Mr Davis’ former wife in the Family Court, that Court made an order that maintenance be paid by Mr Davis to his former wife as carer of one or more of Mr Davis’ children and that, by August 2005, the amount of $27,629.11 comprised the arrears due under that order plus penalties. The other possibility is that the liability arose as a result of a child support assessment determined by the Registrar under the Child Support (Assessment) Act 1989 (Cth) (the Assessment Act). Such an assessment is made after application by the children’s carer (see Pt 4 of the Assessment Act and s 4 and s 17 of the Collection Act).
    2. In the present case, it does not matter how the liability first arose. It is clear that a registrable maintenance liability within the meaning of that expression as used in the Collection Act did arise at some time before 8 November 2005. Counsel for Mr Davis did not suggest otherwise. Furthermore, Mr Davis does not claim that the underlying debt due in respect of maintenance which ultimately became a registered maintenance liability was not, in fact, due. In Mr Davis’ world, the relevant events for present purposes commenced with the making of the Local Court orders on 8 November 2005.
    3. As explained by the High Court in Luton [2002] HCA 13; 210 CLR 333, the Registrar must register in the Child Support Register kept under the Act a registrable maintenance liability once such a liability arises (see ss 23, 24 and 24A of the Collection Act).
    4. The obligation to register such a liability does not arise if the carer to whom the maintenance is owed elects to pursue his or her own remedies and not to take advantage of the Commonwealth’s collection scheme under the Collection Act (s 23(3) and s 24A(2) of the Collection Act).
    5. Once the registrable maintenance liability is registered under the Collection Act, the underlying debt created by the child support assessment or Court order becomes a debt due to the Commonwealth from the payer in accordance with the particulars of the liability entered in the Child Support Register (s 30 of the Collection Act).
    6. The registrable maintenance liability of $27,629.11 owed by Mr Davis in the present case was registered in the Child Support Register under the Collection Act at some time prior to 8 November 2005. Upon registration, that amount became a debt due from Mr Davis to the Commonwealth. Subject to a limited exception, once registration was effected, the carer/payee was no longer entitled to enforce the debt.
    7. The Registrar then brought proceedings against Mr Davis in the Local Court of NSW (Family Matters) at Sydney in order to recover as debts due to the Commonwealth the unpaid maintenance and penalties and the amount due on account of costs under the Family Court costs order which had been made on 31 August 2005. This action was plainly authorised by the Collection Act.
    8. On 8 November 2005, a NSW State Local Court Magistrate, sitting in the Local Court (Family Matters) at Sydney, made a declaration and orders in those proceedings. On that day, the Local Court made a declaration that:
there is owing to the Commonwealth in respect of amounts owing as follows:
(a) under registered maintenance liabilities of [Mr Davis] the sum of $27,629.11; and
(b) in legal costs awarded by the Full Court of the Family Court of Australia on 31 August 2005 in the amount of $11,692.00.
  1. It is not necessary for present purposes to consider whether the appropriate way of reflecting the debts due to the Commonwealth was to make declarations in that form. Nor is it necessary for present purposes to understand the basis upon which the Family Court costs order made on 31 August 2005 became a debt due from Mr Davis to the Commonwealth. The substance of the matter was that the Local Court gave judgment in favour of the Registrar against Mr Davis in the two amounts specified. Subject to Mr Davis’ constitutional arguments, there is no dispute in the present proceedings as to Mr Davis’ obligation to pay the two amounts referred to in those declarations.
  2. On the same day and as part of the same orders, the Local Court Magistrate made orders that Mr Davis pay the costs of the proceedings before the Magistrate as well as pay the two amounts the subject of the declarations to which I have referred.
  3. Paragraphs 3 to 9 of the orders made by the Magistrate on 8 November 2005 were in the following terms:
    1. That the Respondent’s interest in the property described below be charged with the debt in Orders 1 and 2 herein until the debt and costs have been paid in full:
      1. the real property known as 20 St. Kevins Avenue, Benowa in the State of Queensland, being comprised in Lot 33 of Group Titles Plan of Re-subdivision 2199 County of Ward, Parish of Nerang and contained in title reference no. 17449213
(“the Property”)
  1. the shares of the Respondent in FPD Pty Ltd.
  1. That the Respondent be restrained from assigning, transferring, encumbering or otherwise dealing with the real property and shares detailed in paragraph 3 hereof until further order of the court, or the debt and costs in orders 1 and 2 hereof have been paid in full or unless with the written consent of the Applicant.
  2. That an enforcement warrant issue as attached hereto marked with the letter “A” (“the enforcement warrant”) for the seizure and sale of the Property described in paragraph 3 herein and that the Official Receiver in Bankruptcy be appointed as the authorised enforcement officer.
  3. That for the purpose of sale pursuant to the enforcement warrant, the Respondent shall within 14 days of being so requested in writing by the Enforcement Officer sign all documents and do all things necessary to transfer his interest in the Property to the Enforcement Officer to be held on trust for sale pursuant to Chapter 20, Part 20.3 of the Family Law Rules 2004 and the proceeds of sale applied:
(i) firstly, in payment of all costs, commissions and expenses of the trust, transfer and sale including all costs incurred by the Enforcement Officer;
(ii) secondly, in discharge of any encumbrance upon the Property;
(iii) thirdly, in payment of the outstanding balance of the total sum payable under Orders 1 and 2 herein;
(iv) fourthly, in payment as to his/her share (either as agreed or subject to partition order) of the balance of proceeds remaining, to any other joint tenant owner of the Property (“the joint tenant”)
(v) fifthly, in payment of the residue to the Respondent.
  1. That in the event that the Respondent is in default of Order 6 herein, the Enforcement Officer or the Registrar of the Court shall be empowered to sign all documents and do all things necessary to transfer the Respondent’s interest in the property into the name of the Enforcement Officer.
  2. On satisfaction of the debt in Orders 1 and 2 above, the Applicant will withdraw any charge that has been registered over the Respondent’s property.
9. That there be liberty to the Applicant to apply:
(A) with respect to any issue arising under Orders 3 and 8 hereof; and
(B) for orders with respect to the shares of the Respondent in FPD Pty Ltd.
  1. Orders 1 and 2 made on 8 November 2005 required Mr Davis to pay to the Commonwealth:
(a) The Commonwealth’s costs of the Local Court proceedings (assessed at $4,274.00); and
(b) The two sums referred to in the declaration made on the same day (viz $27,629.11 and $11,692.00).
  1. The “Respondent” referred to in the Local Court orders is Mr Davis. The draft Enforcement Warrant attached to the orders required the seizure and sale of such of the real and personal property of Mr Davis as may be required to realise sufficient funds to satisfy the total debt due as at 8 November 2005 viz $43,595.11. A warrant in the form of the draft Warrant was issued by the Local Court on 21 November 2005.
  2. Mr Davis had a right to appeal to the Family Court from the Local Court orders but did not do so within the time stipulated in the Family Law Act 1975 (Cth) and the Family Law Rules 2004.
  3. On 13 January 2006, Mr Davis made a belated attempt to overturn the Local Court orders. On that day, Mr Davis filed an Application in the Family Court in which he sought leave to appeal from the Local Court orders out of time. In the grounds of appeal relied upon in the draft Notice of Appeal which accompanied that Application, Mr Davis raised several alleged breaches of the Family Law Rules and also asserted that the statutory provisions allowing for the assessment and collection of child support by the Registrar were unconstitutional and invalid. On 3 April 2006, Lawrie J dismissed that application with costs (assessed at $1,129.55).
  4. By way of enforcement of the Local Court orders, the first respondent subsequently acquired Mr Davis’ interest in the Queensland property known as 20 St Kevins Avenue, Benowa (the Queensland property). The Commonwealth had lodged a caveat against the title to that property on 23 November 2005. Mr Davis asserts that the first respondent has for some time threatened to sell the Queensland property and continues to threaten to effect such a sale. As I have already mentioned, the Queensland property was held by Mr Davis as joint tenant with Ms Fofie Lau.
  5. On 25 March 2009, the Registrar issued the Notice. Because Mr Davis has mounted a very vigorous attack upon the form of the Notice, I have attached a copy of the Notice to these Reasons for Judgment as Attachment “A”. The Notice was received by the Estate’s solicitors on 30 March 2009.
  6. Apparently, both Mr Davis and the Estate’s solicitors had been forewarned that the Registrar intended to serve a s 72A Notice on the Estate’s solicitors. The Estate’s solicitors were told of this on 17 March 2009. They immediately informed Mr Davis who then wrote to the Estate’s solicitors on 22 March 2009 foreshadowing a technical challenge to the Notice. Mr Davis’ letter dated 22 March 2009 was not tendered in evidence before me. On 30 March 2009 the Estate’s solicitors asserted to the Registrar that, as at that date, there were no funds available to pay to Mr Davis and thus no funds to be attached by the s 72A Notice.
  7. At the hearing before me, the solicitor for Mr Davis made certain assertions based upon the instructions of Mr Davis. Some relevant facts were proven in this way. These were:
(a) The Estate’s solicitors are the solicitors acting for the executor of the Will of Dr Davis in the administration of the estate;
(b) Each of Dr Davis’ five grandchildren was left a specific legacy of $5,000 with the balance of the estate being divided equally between Dr Davis’ wife, his daughter and Mr Davis;
(c) Dr Davis died on 25 October 2008;
(d) Probate of the Will of Dr Davis was granted to Mr Cowley on 22 January 2009;
(e) Dr Davis’ estate has not yet been fully administered;
(f) No debt was due from Dr Davis to Mr Davis as at the date of Dr Davis’ death; and
(g) The value of the estate (leaving aside real estate owned by Dr Davis and his wife as joint tenants) is approximately $210,404.00. Mr Davis’ share is thus about $62,000.00 before testamentary expenses are taken into account.
  1. The solicitor for Mr Davis (and Mr Davis) also asserted that there was no Public Officer of the description referred to in the Notice. Neither Mr Davis nor his solicitor stated the basis for their knowledge of this asserted fact. I do not accept this assertion. The three persons named as addressees in the Notice are solicitors practising under the firm name RBHM Commercial Lawyers. It is very likely that that firm does have a Public Officer for income tax and other regulatory purposes.
  2. It is Mr Davis who contends that there is no such person. I do not think that he has established that fact. To the contrary, I think that the evidence establishes that there is such a person. If it matters, that is the finding which I make.
  3. In the period from 30 March 2009 to 24 April 2009, correspondence passed between Mr Davis’ solicitors and the solicitors for the respondents. In that correspondence, Mr Davis’ solicitors sought undertakings in respect of the Queensland property. As at 24 April 2009:
(a) The solicitors for the Registrar had informed the solicitors for Mr Davis that:
... pending the determination of the current proceedings, [the Registrar] will not instruct ITSA to take action to sell the property [referring to the Queensland property].
This statement was first made in a letter from the Australian Government Solicitor to the solicitors for Mr Davis dated 17 April 2009. It was made in response to a request for an undertaking first made by the solicitors for Mr Davis to the Registrar by letter dated 14 April 2009. It was repeated in a letter passing between the same parties dated 23 April 2009;
(b) In a letter dated 24 March 2009 from the solicitors for the first respondent to the solicitors for Mr Davis, the solicitors for the first respondent said:
INSOLVENCY & TRUSTEE SERVICE AUSTRALIA & ORS ats PETER LEWIS DAVIS
NSD 52/2009
We refer to our telephone conversation with your Counsel, Peter King on 23 March 2009.
We are instructed to consent to Order number 3 of the Applicant’s Amended Application dated 6 March 2009, restraining the First Respondent from selling the property until the disposition of the current proceedings (NSD 52 of 2009) in the Federal Court of Australia.
Should you wish to discuss this matter, please do not hesitate to contact Tiffany Thomas of our office.
(c) The Estate’s solicitors had authorised Mr McKell, the solicitor for Mr Davis, to act as their agent; and
(d) The Estate’s solicitors had informed Mr McKell that they consented to Order 1 in the Notice of Motion filed in Court on 24 April 2009 (the order sought in that paragraph is an interlocutory injunction restraining the Registrar from taking further steps to recover moneys from the estate of Dr Davis pending the final hearing of the proceedings).
  1. The following additional matters are relevant:

(a) The applicant’s former wife applied to the Registrar for an administrative assessment of child support soon after he and his wife separated in January 1990. That application was accepted and the child support liability commenced on 13 February 1990.

(b) The applicant remarried in May 1995, on this occasion to Ms Lau.

(c) On 26 August 2003, the Registrar filed an Enforcement Summons in the Local Court of NSW seeking to recover $20,446.37 in child support arrears and late payment penalties owed by the applicant to the Commonwealth.

(d) Various interlocutory applications were made by the applicant and his wife in the period from late 2003 to late 2005.

(e) On 23 November 2005, a caveat was registered against the Queensland property in favour of the first respondent.

(f) On 24 July 2007, the applicant’s interest in the Queensland property, which was, at that time, held in joint tenancy with Ms Lau, was transferred to the first respondent.

(g) The effect of that transfer was to sever the joint tenancy and to commute Ms Lau’s interest to a tenancy in common in respect of 50% of the Queensland property.

CONSIDERATION

The Challenge to the Local Court Orders

  1. The relevant terms of the Local Court orders are set out at [36] in Davis No 1 (as to which see [27] above).
  2. The Local Court orders may be reviewed by this Court pursuant to s 39B(1A) of the Judiciary Act 1903 (Cth) if it can be demonstrated that there were errors in the making of those orders and that those errors were jurisdictional errors (Adsteam Harbour Pty Ltd v Registrar of the Australian Register of Ships [2005] FCA 1324 at [6] and [7] (per Allsop J) and the cases cited therein; Meriton Apartments Pty Ltd v Industrial Court of New South Wales [2008] FCAFC 172; (2008) 171 FCR 380 at [155]–[157] (per Greenwood J) and at [215] and [249]–[250] (per Perram J)). Those orders are not reviewable under the ADJR Act because they do not constitute a decision to which [the ADJR Act] applies because they do not amount to a decision of an administrative character.
  3. The Registrar submitted that the Magistrate who made the Local Court orders had jurisdiction to make those orders.
  4. At the time those orders were made, the Local Court of NSW was established by ss 6(1), 8 and 8A of the Local Courts Act 1982 (NSW) (the Local Courts Act) as a court of record constituted by Magistrates sitting alone. At that time, s 7 was in the following terms:
(1) Every Court shall have the same jurisdiction, civil and criminal, as courts of petty sessions possessed in New South Wales immediately before the appointed day.
(2) Courts shall have the jurisdiction conferred or imposed on them by or under any Act or other law.

  1. Section 4(3)(a) provided that a reference to an Act in the Local Courts Act included a reference to an Act of the Commonwealth. The Local Courts Act therefore recognised that the Commonwealth Parliament may confer Federal jurisdiction on local courts. In Ly v Jenkins [2001] FCA 1640; (2001) 114 FCR 237 at [99] Sackville J, as a member of the Full Court which decided that case, said:
Section 7(2) of the Local Courts Act recognises that Local Courts, in addition to the jurisdiction possessed by Courts of Petty Sessions immediately before the appointed day, also have the jurisdiction conferred or imposed upon them by any other Act or law. Section 7(2), having regard to the terms of s 4(3) of the Local Courts Act, specifically contemplates that jurisdiction may be conferred on Local Courts not only by State law but by Commonwealth enactments. In other words, the New South Wales Parliament has recognised that the Commonwealth Parliament, in the exercise of its constitutional powers, may confer jurisdiction on Local Courts in relation to summary offences created by Commonwealth law.

  1. At the time, there was a jurisdictional limit imposed on NSW Local Courts in terms of the quantum of money that may be claimed in those Courts in any debt recovery proceedings: see s 65(1)(a) of the Local Courts Act. At that time, the limit was $60,000.00. The enforcement proceedings taken in the present case were well within that limit.
  2. One of the important submissions made by the applicant in the present case was that the Local Court of NSW had no jurisdiction to issue a Writ of Execution against the Queensland property. This may well have been correct if the judgment lying behind such a Writ was purely State based and had not resulted from the application of Federal law. However, as the Registrar submitted, it is not necessary in the present case to resolve that question. There is an additional conferral of jurisdiction pursuant to s 104(2) of the Collection Act which provides that each local court in New South Wales is invested with jurisdiction in relation to matters arising under that Act.
  3. The Registrar submitted that the jurisdiction conferred by s 104(2) of the Collection Act is not limited by locality for a number of reasons. The Registrar submitted that:

(a) Section 77(iii) of the Constitution states that the Commonwealth Parliament may make laws “[i]nvesting any court of a State with federal jurisdiction”, which by s 76(ii) includes jurisdiction in matters arising under any law made by Parliament. As Latham CJ explained in Peacock v Newtown Marrickviile General Co-Operative Building Society No 4 Ltd [1943] HCA 13; (1943) 67 CLR 25 at 37, this is a power “to give new, additional, jurisdiction to State courts”. Further, Parliament may “make the jurisdiction as wide or as narrow as it pleases with respect to persons, localities or amounts involved”. (See, generally, Ly v Jenkins [2001] FCA 1640; 114 FCR 237 at [70]–[71] (per Sackville J), Moore J agreed.).

(b) The general words used in s 104(2) of the Collection Act do not suggest any territorial limitations. Indeed, in Commonwealth Acts, unless the contrary intention appears, references to “localities, jurisdictions and other matters and things shall be construed as references to such localities, jurisdictions and other matters and things in and of the Commonwealth” (Acts Interpretation Act 1901 (Cth), s 21(1)(b). See also s 17(a)). By its very nature, federal jurisdiction “is exercised in Australia, not in a State or Territory. And federal jurisdiction is no different when exercised by State courts. They, too, exercise federal jurisdiction throughout Australia, not merely in its States” (Commonwealth v Mewett [1997] HCA 29; (1997) 191 CLR 471 at 525 (per Gaudron J); see, also, Breavington v Godleman [1988] HCA 40; (1987) 169 CLR 41 at 87 (per Wilson and Gaudron JJ).

(c) Section 104(2) of the Collection Act may be contrasted with s 39(2) of the Judiciary Act, which generally confers federal jurisdiction on State courts (including the Local Court) subject to any pre-existing jurisdictional limits placed on those courts under State law, including as to “locality [or] subject-matter” (Federated Sawmill, Timberyard and General Woodworkers’ Employees’ Association v Alexander [1912] HCA 42; (1912) 15 CLR 308 at 312 (per Griffiths CJ)).

(d) Nor can s 104(2) be equated to a provision which merely states that a debt can be sued for and recovered in any court of summary jurisdiction. Such a provision, which confers jurisdiction on State courts by implication, generally takes such courts as they are, with all their limitations as to jurisdiction (subject to any contrary intention) (Federated Sawmill, Timberyard and General Woodworkers’ Employes’ Association v Alexander [1912] HCA 42; 15 CLR 308 at 313 (per Griffiths CJ)).

(e) Further, if s 104(2) were construed so as to maintain territorial limits on State courts, it would stymie the conferral of federal jurisdiction. The Collection Act is designed to ensure children receive from their parents the financial support that the parents are liable to provide (s 3(1)(a)). To that end the Registrar may be tasked with collecting child support debts as debts due to the Commonwealth. The child support scheme is a national one, and a debtor may hold assets in various States and Territories. While jurisdiction to recover debts is also conferred on the Family Court and Federal Magistrates Court (s 104(1)), it would frustrate the purposes of the Collection Act if the Registrar could not pursue, in courts of summary jurisdiction (which are more common and accessible), writs of execution on real property in other States and Territories.

  1. I agree with the submissions which I have set out at [36] above. Counsel for the applicant did not engage in detail with those submissions and did not advance an answer to them. Rather, the thrust of his submissions was that his ultimate proposition was at least arguable and should therefore be allowed to go to trial.
  2. I do not agree that the applicant’s contention that the Magistrate who made the Local Court orders did not have jurisdiction to make those orders is arguable. The Local Court’s jurisdiction in relation to matters arising under the Collection Act was not limited by any geographical limitations otherwise applicable to the Local Court as a matter of State law (if any such limitations, in truth, exist).
  3. For these reasons, the applicant’s contention that the Magistrate who made the Local Court orders had no jurisdiction to make those orders has no reasonable prospect of succeeding.
  4. The applicant also contended that the Magistrate who made the Local Court orders did not have power to make those orders. But, in order to succeed in an argument along these lines, the applicant must demonstrate that, not only did the Magistrate misconstrue his powers, but that he acted outside his jurisdiction by committing jurisdictional error. The mere fact that an inferior court might misconstrue its powers is not a basis for judicial review pursuant to s 39B of the Judiciary Act.
  5. For these reasons, I do not think that the applicant has a reasonable prospect of succeeding in a separate challenge to the Local Court orders based upon lack of power.
  6. In any event, in my view, the Magistrate who made those orders did have power to make them. This conclusion is explained and supported by the observations of Sackville J in Flanagan v Australian Prudential Regulation Authority [2004] FCA 1321; (2004) 138 FCR 286 at [15]–[21].
  7. In Davis No 1 at [14]–[25], I extracted various passages from the judgments of the High Court in Luton v Lessels [2002] HCA 13; 210 CLR 333 which explain the statutory scheme in question. In light of that explanation, the Registrar submitted:

(a) Part 4 of the Assessment Act provides for applications to the Registrar for administrative assessments of “child support”. A successful application results in child support being payable for the child by the liable parent to the carer entitled to child support: Assessment Act, s 31(1).

(b) That liability is a “registrable maintenance liability” for the purposes of the Collection Act: Collection Act, s 17(2). Generally, where the Registrar makes a child support assessment under which a registrable maintenance liability arises, the Registrar must immediately register the liability under the Collection Act: s 24A(1). Once the liability is registered, amounts payable under the child support assessment under which the liability arises become debts due to the Commonwealth by the liable parent in accordance with the particulars of liability entered in the Child Support Register: Collection Act, s 30(1). Section 67 provides for “late payment penalties” to be imposed in respect of child support debts that remain unpaid.

(c) Debts due to the Commonwealth under the Collection Act may be sued for and recovered by the Registrar in a court having jurisdiction under the Collection Act: s 113. The Local Court has jurisdiction (see s 104(2)).

(d) Section 109A(1) of the Family Law Act 1975 (the Family Law Act) provides that the power of the judges to make Rules of Court under s 123 extends to making Rules of Court for or in relation to the enforcement by the court of the Collection Act or the Assessment Act. The rule-making power includes providing for a variety of orders in respect of a person who fails to pay an amount payable under a registered maintenance liability pursuant to the Collection Act or the Assessment Act: s 109A(2)(c)(iv). The orders specified include the issue of a warrant of execution against property of a person and the making of an order for the sequestration and, if necessary, the sale of property of that person: s 109A(3)(b), (d).

(e) Section 105(1) of the Collection Act provides that the Family Law Act and the Family Law Rules apply generally to proceedings under the Collection Act (other than proceedings under s 113(1)(c)(i)) as if the proceedings were proceedings under the Family Law Act, and “a court having or exercising jurisdiction in the proceedings were a court having or exercising jurisdiction under that Act”. Chapter 20 of the Family Law Rules, including Pt 20.3 which deals with “enforcement warrants”, therefore becomes applicable to enforcement proceedings under s 113(1)(c)(ii) of the Collection Act.

(f) Chapter 20 of the Family Law Rules sets out a procedure by which child support liabilities and costs, including the costs of enforcement, may be enforced (r 20.01(1)(a), (2)(c), (d), (f)). Where the obligation is a child support liability, the obligation may be enforced by a person entitled to do so under the Registration Act: r 20.04(d). An application may be made under Pt 20.3 for the seizure and sale of real property under an “enforcement warrant” (r 20.16). An “enforcement officer” is then under a duty to seize or sell property of the person subject to the liability in the sequence that the enforcement officer considers is best for promptly enforcing the warrant, avoiding undue expense or delay and minimising hardship to the payer and any other person affected: r 20.18(1). An enforcement officer may, when enforcing a warrant, enter any real property that is the subject of the warrant, using such force as may be necessary and eject from the property any person who is not lawfully entitled to be on the property: r 20.18(2). Property seized under an enforcement warrant remains the subject of the warrant unless it is released by full payment of the total amount owing, the sale of the property, an order of the court or the consent of the payee: r 20.20(1). A person against whom an enforcement warrant has been issued (or affected third parties) may serve a notice of claim against the enforcement officer to, in effect, resist enforcement (r 20.25). Provision is made for the hearing of an application to determine the claim (r 20.29).

  1. These submissions are correct. The applicant put nothing by way of contradictory submission. I accept them.
  2. The fact that Ms Lau was not a party to the proceedings before the Local Court does not affect the power of the Court to make the orders which it made on 8 November 2005. In addition, the matter is probably specifically covered by r 20.59(2) of the Family Law Rules which is in the follow terms:
If an order is made against a person who is not a party to a case, the order may be enforced against the person as if the person were a party.

  1. A joint tenancy may be severed by a court order that requires the property the subject of the joint tenancy to be dealt with in a manner that expressly or by necessary implication is inconsistent with the continuance of the joint tenancy (see Butt, Land Law (5th ed, 2006) at [1487] and Guthrie v ANZ Banking Group Ltd (1991) 23 NSWLR 672 at 680 (per Meagher JA)).
  2. The contentions made on behalf of the applicant that the Magistrate who made the Local Court orders did not have power to effect a severance of the joint tenancy in respect of the Queensland property and did not have power to make orders affecting the Queensland property in the absence of Ms Lau as a party to the enforcement proceedings are bound to fail. For this reason, the applicant has no reasonable prospect of succeeding in respect of these contentions.

Acquisition of Property

  1. Apart from the Constitutional challenge mounted by the applicant, there is no challenge in the present proceedings to the validity of the underlying child support debt owed by the applicant to the Commonwealth. The substance of the contention advanced by the applicant is that any law of the Commonwealth which underpins the making of the Local Court orders contravenes s 51(xxxi) of the Constitution and is therefore invalid.
  2. Laws which confer jurisdiction and power on courts to enforce existing debts are not laws with respect to the acquisition of property. Such legislation falls outside s 51(xxxi) of the Constitution. The statutory scheme relevant to the creation and enforcement of the debt in question in the present case is not a law with respect to the acquisition of property (see the discussion by Brennan J, as he then was, in Mutual Pools & Staff Pty Ltd v The Commonwealth [1994] HCA 9; (1994) 179 CLR 155 at 178–181; see also Airservices Australia v Canadian Airlines International Ltd (1999) 202 CLR 133 at [98] (per Gleeson CJ and Kirby J)). In Airservices Australia v Canadian Airlines International Ltd 202 CLR 133 at [345], McHugh J said that the notion of fair compensation in that context was incongruous with a statutory scheme designed to assist in the recovery of debts.
  3. The Registrar submitted that:

(a) In this case, it would frustrate the objectives of the legislation if just terms had to be provided to persons whose property was seized as part of a scheme for the enforcement of child support liabilities. The means selected by Parliament to ensure such liabilities are met are appropriate and adapted to meet the objectives of the child support scheme, which is otherwise within legislative power. The child support scheme is supported by each of s 51(xxii) (marriage power), s 51(xxxvii) (State reference power), s 51(xxxix) (incidental power) and s 122 (territories power) of the Constitution: Luton 210 CLR 33 at [6] (per Gleeson CJ), and [91]–[92] (per Kirby J).

(b) Similarly, a law will also not be characterised as a law with respect to the acquisition of property if the law is not directed towards the acquisition of property as such but is instead concerned with the adjustment of competing rights, claims or obligations of persons in a particular relationship or area of activity: Nintendo Co Ltd v Centronics Systems Pty Ltd [1994] HCA 27; (1994) 181 CLR 134 at 160–161 (per Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ). The impugned provisions here meet this description. They are part of a scheme designed to adjust the competing interests of parents vis-à-vis their child or children. See, also, Airservices Australia v Canadian Airlines International Ltd 202 CLR 133 at [497], [501], [503] (per Gummow J, Hayne J agreeing).

  1. I agree with those submissions.
  2. The applicant’s contention that the legislation supporting the Local Court orders is invalid by reason of the operation of s 51(xxxi) has no reasonable prospect of succeeding.

The Applicant’s Challenge to the Section 72A Notice

  1. At the time of the interlocutory hearing disposed of by Davis No 1, the applicant advanced a number of arguments in support of the proposition that the s 72A Notice was invalid and no effect. A copy of that Notice was attached to the Reasons for Judgment in Davis No 1.
  2. At that time, Counsel advanced detailed submissions in support of the ultimate proposition relied upon by him. The first group of submissions was directed to the proposition that the Notice was bad in form. Those submissions were confined to a consideration of the Notice itself. Although Counsel did not repeat at the hearing of the Registrar’s summary dismissal Motion the submissions which he had previously made, I will proceed upon the basis that the submissions previously made are still relied upon in the new setting.
  3. There was nothing new put to me in respect of this broad contention at the hearing of the Registrar’s summary dismissal Motion. I have again considered in detail the submissions made on behalf of the applicant that the s 72A Notice was bad in form. I see no reason to change the views which I expressed in Davis No 1. At [61]–[71] in that judgment, when dealing with this point, I said:
    1. Counsel for Mr Davis submitted that the claims made by Mr Davis in par 9A were supported by s 39B(1) and s 39B(1A) of the Judiciary Act 1903 (Cth). He did not rely upon the Administrative Decisions (Judicial Review) Act 1977 (Cth). Counsel submitted that the Notice was invalid and of no effect for two broad reasons, namely:
(1) The Notice was bad in form; and
(2) The decision to issue the Notice was invalid because the pre-conditions or jurisdictional facts founding its issue had not been established.
  1. In support of his first broad ground, Counsel for Mr Davis made a number of points about the Notice.
  2. First, he submitted that a valid s 72A Notice had to be directed to a named person and that the Notice here was not so addressed. I do not think that the section imposes such a requirement. Provided that the addressee is sufficiently identified, I see no reason why that person necessarily must be named. However, in any event, I think that, in the present case, the “persons” to whom the Notice is directed are the three named parties, namely the Estate’s solicitors. It is they who will be obliged to pay moneys to Mr Davis in the future. Prefacing the mention of their names with a reference to “the Public Officer” does not alter the nature of the relationships in play. It is merely a convenient way of politely addressing the command. But the command is directed to the persons who will owe the moneys in due course. I do not think that mentioning the Public Officer renders the Notice invalid. Counsel also submitted that, because there was no “Public Officer” of the named persons, the Notice was invalid. This contention depends upon my finding that there was no Public Officer. I have not made that finding. This contention must also fail.
  3. Second, it was submitted that the Notice was ambiguous and unclear as to the identity of the person or persons who were intended to be required to comply with it. I disagree. A fair reading of the Notice as a whole leaves no doubt that it is directed to the named persons, namely the Estate’s solicitors. The first line of the text (under the heading) makes this very clear.
  4. Third, it was submitted that s 72A was directed only to those who were or might become debtors of the child support debtor, ie those who were in a creditor/debtor relationship or were likely to find themselves in such a relationship in the future. The proposition was that the Estate’s solicitors were not debtors of Mr Davis as at 30 March 2009 and were unlikely to become debtors of Mr Davis in the future. I disagree with that submission both in principle and on the facts in the present case.
  5. In my judgment, the language of s 72A expresses very widely the class of person to whom s 72A Notices might legitimately be addressed. The ordinary meaning of the text encompasses trustees, agents, debtors and perhaps other less well-known categories. The class of persons to whom a s 72A Notice might be given is not confined to debtors of the child support debtor. Nor does the money have to be actually in hand at the time the Notice is served. In the present case, in my view, given that the language covers persons who may, in the future, receive moneys on behalf of the child support debtor, the Estate’s solicitors are persons who, in the future, may come to hold money on behalf of Mr Davis. Such an outcome is very likely given that the assets of Dr Davis have yet to be realised and gotten in and given that the Estate’s solicitors represent the Executor and Trustee of Dr Davis’ Will. The Notice was not defective on account of these matters.
  6. Fourth, Counsel for Mr Davis submitted that the Notice was defective because it did not specify an amount of money which had to be paid to the Registrar. This submission should also be rejected. Paragraphs (i) and (ii) of the Notice make clear that, if the amount of the available funds in the hands of the Estate’s solicitors is equal to or exceeds $53,383.11, then $53,383.11 must be paid to the Registrar. If the amount of the available funds is less than $53,383.11, then the whole of the available funds must be paid to the Registrar.
  7. Fifth, Counsel for Mr Davis submitted that the Notice was bad because it did not specify a time for payment. I disagree. The Notice stipulates that, in respect of moneys held as at 30 March 2009, the requisite sum should be paid within seven days of the date of the Notice and, in respect of future moneys, within seven days of the date upon which the money becomes due or is held.
  8. Sixth, Counsel for Mr Davis submitted that the Notice was invalid because it was not personally signed by the Registrar but was signed by the “State Manager” of the Child Support Agency. This submission should also be rejected. The Registrar has a broad power of delegation (s 15 of the Collection Act) and controls the manner and form in which a s 72A Notice might be given (s 16A of the Collection Act). For Mr Davis to make good this contention, he would need to prove by admissible evidence that the signatory to the Notice was not a duly authorised delegate of the Registrar and that s 16A had not been engaged. He has proven neither of these matters. In any event, the Registrar is entitled to the benefit of s 34AB(c) of the Acts Interpretation Act 1901 (Cth) which is in the following terms:
34AB Effect of delegation
Where an Act confers power on a person or body (in this section called the authority) to delegate a function or power:
...
(c) a function or power so delegated, when performed or exercised by the delegate, shall, for the purposes of the Act, be deemed to have been performed or exercised by the authority;
  1. It is apparent that the Registrar has delegated the power to issue the Notice to the person who signed it. No suggestion to the contrary was made. By the operation of s 34AB(c), the power to issue the Notice is therefore deemed to have been performed or exercised by the Registrar.
71 For the above reasons, the Notice was not bad in form.

  1. In Davis No 1, Counsel for the applicant also advanced a second broad challenge to the s 72A Notice. At [72], I said:
    1. As to the second broad ground of challenge to the Notice, Counsel for Mr Davis submitted that, for a notice under s 72A to be valid, the Registrar must have evidence of and be in a position to prove one or more of the matters referred to in subpars (a) to (d) of s 72A(1) as at the date the notice is issued. In this case, therefore, the Registrar must have been able to prove that one or more of the threshold matters referred to in the subparagraphs existed as at 25 March 2009. Counsel submitted that, in the present case, the Registrar had not proven the necessary facts, in respect of which she bore the onus, and that therefore the Notice was invalid or ultra vires. I do not agree with this interpretation of s 72A advanced on behalf of Mr Davis. However, I do not think that I need to decide for the purpose of the present application the question of law embedded in Mr Davis’ contention. I think that the Registrar did establish to a sufficient degree that the Estate’s solicitors may, in the future, hold moneys due to Mr Davis and thus be within one or more of the classes referred to in subpars (a) to (d) in s 72A(1). I reject this submission.
  2. I have also again carefully considered this argument advanced on behalf of the applicant. I adhere to what I said at [72] in Davis No 1.
  3. I should add that what is required by s 72A(1) of the Collection Act is that the Registrar have some reasonable basis in her mind when giving a payment notice authorised by the section for thinking that one or other of the circumstances adumbrated in subs (1)(a) to (d) is the fact. Here, the Registrar was told by the solicitor for the applicant that the fourth respondents were the Executors of the applicant’s late father’s estate. This turned out to be incorrect. However, the fact is that they are the solicitors for the Executor of the applicant’s late father’s estate. Because the applicant is a beneficiary under his late father’s Will, the information conveyed to the Registrar was a reasonable basis for the Registrar to come to the view that the fourth respondents may subsequently hold money for or on account of the applicant or may subsequently hold money on account of some other person for payment to the applicant or might have authority from some other person to pay money to the applicant. The same may be said of the facts in the present case, namely, that the fourth respondents are the solicitors who are acting for the Executor of the applicant’s late father’s estate. There was a reasonable basis for the Registrar to think that the fourth respondents may hold money for or on account of the appellant.
  4. The idea behind s 72A is that the Registrar should be empowered to issue what is in effect a statutory garnishee in order to aid the recovery of child support debts due to the Commonwealth. The enforcement action contemplated by the section should not be surrounded with unduly technical requirements directed to notions of standard of proof or the like.
  5. For the reasons which I explained at [72] of Davis No 1 and for the additional reasons which I have just given, I think that this second ground of challenge to the s 72A Notice has no reasonable prospect of succeeding.

Discretion

  1. As I mentioned at [39]–[40] of Davis No 1 (as to which see [27] above) the applicant attempted to appeal from the Local Court orders to the Family Court which is the place where such appeals are to be heard. His appellate rights in that Court were exhausted on 3 April 2006. He made no effort at all in the ensuing three years to bring an application for judicial review in this Court. The applicant explains this circumstance by submitting that there was no occasion for him to take action of that kind until the first respondent began to take steps to sell the Queensland property. This occurred in August 2008. I do not agree with this submission. The Local Court orders made plain that the Queensland property was at risk. No doubt this is why the applicant attempted to appeal from the Local Court orders back in 2006. Furthermore, the first respondent had effected a severance of the joint tenancy in the middle of 2007.
  2. The substance of the matter is that the applicant has stood by for almost three years and done nothing to agitate any rights which he may have had for judicial review of the Local Court orders. In my judgment, even if all of the other matters raised by the Registrar as reasons why the applicant has no reasonable prospect of successfully prosecuting this proceeding were rejected by me, it would be a wrong exercise of the Court’s discretion, were the matter to go to a final hearing, for the Court to grant relief to the applicant in the circumstances which I have outlined.

CONCLUSIONS

  1. In my judgment overall, the applicant has no reasonable prospect of successfully prosecuting this proceeding. Therefore, I propose to accede to the Registrar’s application that the proceedings be dismissed pursuant to s 31A of the Federal Court Act. There will be orders accordingly.
  2. The Registrar submitted that the present proceedings constitute an abuse of the process of the Court and that it should be dismissed on that ground as well. The Registrar submitted that, were I to come to that view, her costs should be paid on an indemnity basis. There has been no real investigation of the applicant’s motivation in bringing the present proceedings. Although it is an available inference that the proceedings have been brought as an inappropriate attempt to delay the permissible enforcement of the Local Court orders, in the absence of a stronger evidentiary foundation, I am not prepared to draw such an inference.
  3. Accordingly, I propose to order that the applicant pay the Registrar’s costs on the usual party/party basis.
  4. There will be no order for costs in favour of any of the other parties.
I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster.

Associate:


Dated: 12 February 2010


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