Luton v Lessels & Anor C40/1995 [2000] HCATrans 313 (14 June 2000)

IN THE HIGH COURT OF AUSTRALIA

Registry No C40 of 1995

B e t w e e n -

ANTHONY IAN LUTON

Plaintiff

and

GILLIAN GLADYS LESSELS

First Respondent

THE CHILD SUPPORT REGISTRAR

Second Respondent

Summons to state a case pursuant to section 18 of the Judiciary Act

CALLINAN J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 14 JUNE 2000, AT 9.35 AM

(Continued from 24/5/00)

Copyright in the High Court of Australia

MR G.C. CORR: If it please the Court, I appear with MS G. WONG, for the plaintiff, Mr Luton. (instructed by Tjakamarra Forrest Solicitors)

MR C.J. HORAN: If the Court pleases, I appear for the second respondent. (instructed by the Australian Government Solicitor)

Your Honour, as a preliminary matter, could I seek an amendment to the title of the proceedings in this matter. The proceedings as issued named the second respondent as the Registrar of the Child Support Agency. I would seek to amend that to read "The Child Support Registrar" which reflects the title of the office created by section 10 of the Registration and Collection Act.

HIS HONOUR: Yes. There is no problem about that, Mr Horan?

MR HORAN: No, none whatsoever, your Honour.

HIS HONOUR: I have a certificate that the Registrar has been advised by solicitors for the first defendant that the first defendant does not wish to make oral submissions upon the hearing of the summons filed by the plaintiff on 26 April 200 and, accordingly, there will be no appearance for the first defendant at the hearing today, as there was not on the previous occasion.

Thank you for the submissions. They were helpful. But there was one matter, if I could remind you. I said, and it appears in the transcript, that I though the material was deficient and that:

I would need to see the application, any of the formal documents that have been filed and dealt with: the application to the Registrar, any responses by the Registrar and any notices given by the Registrar and a chronology -

I have been provided with a chronology, but I do not seem to have received the other documents.

MR CORR: No, your Honour, my friend and myself have been endeavouring to get those original documents; there have been some difficulties in extracting those. Some of them would be on the file of the Registrar and others with Mr Luton. We have been endeavouring to do so.

HIS HONOUR: There should not be any problem. I mean, those that went to Mr Luton, there should be copies of those. The second respondent should have them.

MR CORR: Yes, that is correct, your Honour.

HIS HONOUR: Well, what is the problem about the documents?

MR HORAN: Your Honour, the second respondent has some, possibly most of the relevant documents, and my instructing solicitors have provided copies of those documents to their solicitors for the plaintiff. It was proposed that an amended or revised draft stated case would contain those documents as attachments or annexures, but beyond that, we have left those matters to be dealt with appropriately by the plaintiff.

HIS HONOUR: Well, it seems to me that you should have a copy of everything. That intimation I gave was intended to apply to both parties. Is there any difficulty about your providing copies of the documents?

MR HORAN: To the Court, no, your Honour.

HIS HONOUR: And to the plaintiffs?

MR HORAN: No, your Honour, we have provided copies to the plaintiff, but that was on the understanding that the plaintiff would then file an amended draft case with those documents attached. Now, that has not been done. I am happy to provide copies directly to the Court, to the extent that that - - -

HIS HONOUR: Who has provided me with this chronology, which of you?

MR CORR: Yes, I believe that was an annexure to the submissions of the plaintiff, your Honour.

HIS HONOUR: There is nothing wrong with it so far as it goes. There would be a few changes I might make. I am prepared to state a case, but I want to make sure that it is in proper form.

MR CORR: Yes, certainly, your Honour.

HIS HONOUR: It seemed to me that I would need each of the documents referred to in paragraphs 4, 5, in other words, I should get the application referred to in paragraph 4, a copy of the determination in paragraph 5, a copy of the amended assessment in paragraph 7, a copy of the entry that was made and is referred to in paragraph 8, the application that is referred to in paragraph 9, the reply referred to in paragraph 10, the determination in paragraph 11, a copy of the entry referred to in paragraph 12 and in relation to paragraph 14, can you tell me how many notices have been issued? Do you know how many notices have been issued, Mr Horan?

MR CORR: No, I cannot elucidate that, your Honour.

HIS HONOUR: Well, I need to know that. I think the Court would need to know that and just precisely how much has been collected. These are particulars you would have to provide if you were drawing a statement of claim. What would suffice, I think, would be a copy of each of the first and the last of the notices which have been issued.

MR CORR: Yes.

HIS HONOUR: That is assuming that the notices are in standard form, as I would think they would be.

MR CORR: I would be surprised if it were otherwise, your Honour.

HIS HONOUR: Well, it needs to be ascertained.

MR CORR: Yes.

HIS HONOUR: And I would need to know how many notices have been issued. In fact, the notices should be set out in a schedule or the quantum of each notice and the date upon which it was issued. There should be a schedule with that information together with, say, a copy of each of the first and the last of the notices.

MR HORAN: Your Honour, I have not seen any of the notices at this stage but it may be that there is only one notice that needs to be given under the Act which then triggers an ongoing obligation on the - - -

HIS HONOUR: That is not what paragraph 14 says. It says "by means of issuing notices".

MR HORAN: Yes, your Honour. That can be checked.

HIS HONOUR: Well, it needs to be checked and I think you should file all of that information, as I indicated before. What I need to know is what sections of the respective Acts are attacked. Is the attack upon the whole of the legislation or only upon part of it and, if so, which parts of it? You really have to define your case, Mr Corr. You cannot really just say the whole of the scheme is invalid. That might end up being your submission.

MR CORR: Yes, that is correct.

HIS HONOUR: But it needs to be a targeted attack and I really need to know the sections.

MR CORR: Yes. I think in paragraph 19 of the plaintiff's submissions we have submitted that a number of parts and sections of both the Assessment Act and the Registration and Collection Act were invalid within the - as the - - -

HIS HONOUR: Yes, you have. They are the sections that you - - -

MR CORR: Yes, that we are challenging.

HIS HONOUR: The whole of Part 5 of the Child Support (Assessment) Act and then the various other provisions of the other Act.

MR CORR: Yes. I think that it is probably better to maintain the case stated, or the question reserved is somewhat broader than just the provisions which we are in fact challenging. On previous occasions, your Honour, I have noted the ingenuity of the members of the Bench to find provisions other than those which counsel have originally considered to be invalid also - - -

HIS HONOUR: But you cannot be reproached for that, Mr Corr.

MR CORR: No, so that is why I think it is possibly better to maintain a breadth of the question reserved rather than to get down to a specific point.

HIS HONOUR: But you are not asking me to state a case on all the provisions. You are being quite specific here and I think that looks as if it is specific enough. I will have to look at those sections.

To save a further appearance, I am prepared to state a case, but it still needs some refinement. I do not think there is going to be any problem about that refinement so long as I can have the documents to which I have referred.

MR CORR: Yes, your Honour.

HIS HONOUR: When I have received them I will make an order which will involve a stated case and I will define the questions also. So it is really in your hands, gentlemen, that you have to provide the documents to me. I think, Mr Horan, although it is not your action, I understand that, it might be quicker and simpler and clearer if you provided copies of all the documents, I think.

MR HORAN: Yes, your Honour.

HIS HONOUR: The plaintiff should have copies of them all, but in the nature of things they may have been misplaced or something of that kind. So I think what I will do is I will make a formal order that the second respondent file copies of all of the documents to which I have referred, which I have enumerated, together with the schedule that I have said should be filed. When that is done, I hope to be able to state a case and to reserve some questions without having the parties back before me.

Is there anything further?

MR CORR: Yes, certification as to the counsel.

HIS HONOUR: Yes, all right. There is one other matter. I will give the parties liberty to apply when I have stated the case in order that, if there is any matter about which you want an amendment or anything of that kind, you can make an application to me to do that. So I will also make an order granting liberty to apply. What is the drill? I have to certify for counsel, do I? Yes, I certify for the appearance of counsel. Is there anything further?

MR HORAN: No.

HIS HONOUR: All right, thank you.

AT 9.49 AM THE MATTER WAS CONCLUDED