Whittaker v Child Support Registrar (No. 3) [2009] FCA 386

Whittaker v Child Support Registrar (No. 3) [2009] FCA 386

The application to include paragraphs 24 and 25 in the leave to appeal application was refused because paragraph 3 of the Amended Application, the relevant prayer for relief challenging the validity of the Child Support (Assessment) Act 1989, had been dismissed and removed, and there had been no appeal from that dismissal; it was therefore inappropriate to allow the applicants to plead a case in support of relief no longer sought.

Jurisdiction
Australia
Judgment Date
08 April 2009
Procedural Posture
Notice of Motion Seeking Leave to Appeal From Strike Out Orders, With Application to Re Open and Ore Tenus Application to Widen the Scope of the Leave Application / Federal Court Interlocutory Decision on 8 April 2009
Outcome
Leave to re-open was granted; the ore tenus application to widen the scope of the leave application was dismissed; the matter was stood over until midday on 9 April 2009 for judgment.
Legal Topics
['leave to Appeal' 're Opening a Case' 'strike Out of Pleadings' 'leave to Re Plead' 'validity of Child Support (assessment) Act 1989']
['civil Procedure' 'constitutional Law' 'child Support'] ['leave to Appeal' 're Opening a Case' 'strike Out of Pleadings' 'leave to Re Plead' 'validity of Child Support (assessment) Act 1989']

Case Brief

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Procedural Posture

Notice of Motion Seeking Leave to Appeal From Strike Out Orders, With Application to Re Open and Ore Tenus Application to Widen the Scope of the Leave Application / Federal Court Interlocutory Decision on 8 April 2009

Legal Issues

  1. 1 ['Whether the applicants should have leave to re-open their case on the Notice of Motion filed 11 March 2009.' "Whether the applicants should be permitted to widen the scope of the leave application to include a challenge to the primary judge's refusal to grant leave to re-plead paragraphs 24 and 25 of the Amended Statement of Claim."]

Ratio Decidendi

The application to include paragraphs 24 and 25 in the leave to appeal application was refused because paragraph 3 of the Amended Application, the relevant prayer for relief challenging the validity of the Child Support (Assessment) Act 1989, had been dismissed and removed, and there had been no appeal from that dismissal; it was therefore inappropriate to allow the applicants to plead a case in support of relief no longer sought.

Court Disposition

Leave to re-open was granted; the ore tenus application to widen the scope of the leave application was dismissed; the matter was stood over until midday on 9 April 2009 for judgment.

Orders

  • ['Leave to the applicants to re-open their case on the Notice of Motion filed 11 March 2009.' "The application made ore tenus to widen the scope of the leave application to include a challenge to the primary judge's findings in respect of paragraphs 24 and 25 of the Amended Statement of Claim be dismissed." 'The...