Graham, Lynn v Commissioner of Superannuation [1981] FCA 117

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CORRECTION TO TRANSCRIPT

In the matter of Lynn GRAHAM and COMMISSIONER FOR : SUPERANNUATION, heard in the Federal Court of Australia

before Fox ACJ, at Canberra on Tuesday, 23 June 1981, please substitute pages 63 - 68 for transcript previously

1ssued.

This transcipt has been re-issued at the request of the court, to incorporate the judgment delivered by

the Court.

W. J. MILLS Principal Reporter

13/7/1981

per:

courts; I do not know of any authorities in relation to inferior courts.

HIS HONOUR: The presumption is the other way as a rule in relation to courts of summary jurisdiction. But there are exceptions under Lord Jarvis's acts in the last century and the provisions that have been carried forward from them. But whether they apply to this I doubt; I am not sure of it at the moment but in general there is no presumption in favour of the validity of the order; not the sort of presumption you are trying to get to.

We all know that there are arrears and the greatest distance you can get is to say, if you had asked for a different order you might have got one and it would have been valid and that might then put you in the position of a person to whom section 119 applies. That is what you are

saying. MR PURNELL: Yes, your Honour.

HIS HONOUR: All I can say is that at the moment, quite apart from anything else, it is hypothetical and that you did not obtain such an order and if you obtained an order for garnishment which also acknowledges the failure to pay that order was made contrary to section 118 of the Superannuation Act. I do not know where we get to then. We come back to where we were I would have thought.