Luton v Lessels [2002] HCA 13

HIGH COURT OF AUSTRALIA

GLEESON CJ,

GAUDRON, McHUGH, KIRBY, HAYNE AND CALLINAN JJ

ANTHONY IAN LUTON PLAINTIFF

AND

GILLIAN GLADYS LESSELS & ANOR DEFENDANTS

Luton v Lessels

[2002] HCA 13

11 April 2002

C40/1995

ORDER

Answer questions as follows:

Question 1

Is the scheme established by the Child Support (Registration and Collection) Act 1988 (Cth) and the Child Support (Assessment) Act 1989 (Cth) for the collection and payment by the second defendant of money otherwise payable to or receivable by the first defendant a tax?

Answer

No.

Question 2

If "Yes" to question 1 are the Acts invalid as being contrary to s 55 of the Constitution?

Answer

Unnecessary to answer.

Question 3

Do the Acts in purporting to authorise the second defendant to make the assessments and the determinations, to enter the particulars, to issue the notices, and to collect and apply payments in the way in which the second defendant did involve the purported exercise of judicial power by the second defendant contrary to Ch III of the Constitution?

Answer

No.

Question 4

What orders for the further disposition of the action should be made in the light of the answers to these questions?

Answer

The action should be dismissed with costs, including the costs of the case stated under s 18 of the Judiciary Act 1903 (Cth).

Representation:

G C Corr with G K Y Wong for the plaintiff (instructed by Tjakamarra-Forrest)

No appearance for the first defendant

D M J Bennett QC, Solicitor-General of the Commonwealth with C J Horan for the second defendant (instructed by Australian Government Solicitor)

B M Selway QC, Solicitor-General for the State of South Australia with A S Field intervening on behalf of the Attorney-General for the State of South Australia (instructed by Crown Solicitor for South Australia)

R M Mitchell intervening on behalf of the Attorney-General for the State of Western Australia (instructed by Crown Solicitor for Western Australia)