Davis v Insolvency and Trustee Service Australia (No 1) [2009] FCA 562

Davis v Insolvency and Trustee Service Australia (No 1) [2009] FCA 562

The issuing of a notice under s 72A of the Child Support (Registration and Collection) Act 1988 (Cth) by the Registrar does not involve the exercise of judicial power; the constitutional arguments advanced are foreclosed by authority. The applicant failed to demonstrate defects in the notice sufficient to invalidate it or establish a serious question to be tried. Neither the form of the notice nor its authorisation was defective and the balance of convenience did not favour interlocutory relief.

Parties
Applicant: Peter Lewis Davis; First Respondent: Insolvency and Trustee Service Australia; Second Respondent: Child Support Registrar; Third Respondent: Magistrates of New South Wales
Jurisdiction
Australia
Judgment Date
29 May 2009
Procedural Posture
Application for Constitutional Writs and Interlocutory Relief / Interlocutory Application Determination, Application for Leave to Amend and for Injunctions
Outcome
Application for interlocutory injunctions refused; leave to amend partially granted; costs awarded to the second respondent.
Legal Topics
Child Support Recovery, Validity of Child Support (registration and Collection) Act Provisions, Judicial Power of the Commonwealth, Interlocutory Injunctions
Administrative Law Constitutional Law Practice and Procedure Child Support Recovery Validity of Child Support (registration and Collection) Act Provisions Judicial Power of the Commonwealth Interlocutory Injunctions

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Parties

Peter Lewis Davis

Applicant

Insolvency and Trustee Service Australia

First Respondent

Child Support Registrar

Second Respondent

Magistrates of New South Wales

Third Respondent

Procedural Posture

Application for Constitutional Writs and Interlocutory Relief / Interlocutory Application Determination, Application for Leave to Amend and for Injunctions

Legal Issues

  1. 1 Whether the Child Support Registrar, by issuing a notice under s 72A of the Child Support (Registration and Collection) Act 1988 (Cth), exercises judicial power of the Commonwealth
  2. 2 Whether s 104(2) and s 105(2) of the Child Support (Registration and Collection) Act 1988 (Cth) are invalid for impermissibly conferring federal functions on State courts
  3. 3 Whether the notice issued to the estate's solicitors under s 72A is invalid for procedural or substantive reasons

Ratio Decidendi

The issuing of a notice under s 72A of the Child Support (Registration and Collection) Act 1988 (Cth) by the Registrar does not involve the exercise of judicial power; the constitutional arguments advanced are foreclosed by authority. The applicant failed to demonstrate defects in the notice sufficient to invalidate it or establish a serious question to be tried. Neither the form of the notice nor its authorisation was defective and the balance of convenience did not favour interlocutory relief.

Court Disposition

Application for interlocutory injunctions refused; leave to amend partially granted; costs awarded to the second respondent.

Orders

  • Leave granted to applicant to amend application as set out at orders 1(a), 1(b), 1(c).
  • Applicant to file and serve engrossed Further Amended Application by 5.00 pm on 1 June 2009.