Case: Luton v Lessels [2002] HCA 13 ; (2002) 210 CLR 333
Outcome: applied
is no substance in these attacks: see Luton v Lessels [2002] HCA 13 ; (2002) 210 CLR 333. Mr Whittaker has previously taken these contentions to the stage of a special leave application before the High Court: see Whittaker v Child Support Registrar [2004] HCATrans 252. Special leave was refused. Previously Mr Whittaker's judicial power argument was rejected by Drummond J in Whittaker v Child Support Registrar [2000] FCA 1733 ; (2000) 106 FCR 105 and Dowsett J in Whittaker v Child Support Registrar [2002] FCA 1429. His taxation power argument was rejected by Dowsett J in Whittaker v Child Support Registrar [2002] FCA 1430. On appeal, the Full Court held that Luton v Lessels "foreclos[ed] any constitutional challenge" ( Whittaker v Child Support Registrar [2003] FCAFC 114 at [4] ). As noted above, the High Court refused special leave to appeal. Further, an attempt to limit the scope of the operation of Luton v Lessels failed in Weekes and Child Support Registrar [2006] FLC p93-273 ; [2006] FamCA 598. Mr Whittaker (in person with leave) submitted that Luton v Lessels does not constitute a binding precedent because the originating process on the High Court file in that case did not bear the seal of the High Court. The submission is devoid of merit. I also note that the deletion of para 1 in the further amended application was consistent with an abandonment of the submission. Torts in relation to tax file numbers paragraphs 28, 29 and 31 These paragraphs are as follows: Further or alternatively, prior to making the DPO on or about 6 December 2006, the First Respondent negligently or in breach of his duty of confidence to the First Applicant used the First Applicant's tax file number to identify the First Applicant for the purpose of making the DPO. Particulars The First Respondent did not at any time make a request to the First Applicant to give the First Respondent a written statement of the First Applicant's tax file number under section 16B of the Child Support (Registration &amp; Collection) Act 1988 or otherwise. The First Applicant did not at any time give to the First Respondent a written statement of the First Applicant's tax file number. The First Applicant did not at any time give to the First Respondent a written statement of any kind authorising the Commissioner of Taxation to provide the First Respondent with information about the First Applicant, including tax file numbers, being information that is in the possession of the Commissioner of Taxation. The First Applicant did not at any time give to the First Respondent a statement in writing that the First Applicant has a tax file number but does not know what it is and has not asked the Commissioner of Taxation to inform the First Applicant of the First Applicant's tax file number and authorising the Commissioner of Taxation to tell the First Respondent the tax file number. The First Applicant did not at any time give to the First Respondent a statement in writing that the First Applicant has an application for a tax file number pending and authorising the Commissioner of Taxation to tell the First Respondent if a tax file number is issued to the First Applicant that number or if the application is refused that the application has been refused or if the application is withdrawn that the application has been withdrawn. The First Respondent did, without lawful basis, require the Commissioner of Taxation to provide the First Respondent with information about the First Applicant, including the First Applicant's tax file number and/or, without lawful basis, accessed confidential or private information, including the First Applicant's tax file number, being information that was in the possession of the Commissioner of Taxation. The First Respondent did, without the consent or authority of the First Applicant, obtain the First Applicant's tax file number, stored and maintained a record of the said tax file number and used the said tax file number in connection with the First Applicant's identity in breach of section 8WB of the Taxation Administration Act 1953 and/or in breach of the Privacy At 1988. The First Applicant reserves the right to supplement or amend these particulars after discovery. As a result of the negligence or breach of duty of the First Respondent his servants or agents the First Applicant has suffered loss and damage. Particulars Particulars exceed 3 folios and are supplied separately. 30. . Further, or alternatively, the First Respondent negligently or in breach of his duty of confidence to the First Applicant used the First Applicants' tax file number to identify the First Applicant for the purpose of administratively assessing the First Applicant's purported liability pursuant to Part V of the Child Support (Assessment) Act 1989 namely the assessment made or determined on or shortly prior to December 2006 that the First Applicant was a person who has a child support liability. Particulars The First Respondent did not at any time make a request to the First Applicant to give the First Respondent a written statement of the First Applicant's tax file number under section 150B of the Child Support (Assessment) Act 1989 . The First Applicant did not at any time give to the First Respondent a written statement of the First Applicant's tax file number. The First Applicant did not at any time give to the First Respondent a written statement of any kind authorising the Commissioner of Taxation to provide the First Respondent with information about the First Applicant, including tax file numbers, being information that is in the possession of the Commissioner of Taxation. The First Applicant did not at any time give to the First Respondent a statement in writing that the First Applicant has a tax file number but does not know what it is and has asked the Commissioner of Taxation to inform the First Applicant of the First Applicant's tax file number and authorising the Commissioner of Taxation to tell the First Respondent the tax file number. The First Applicant did not at any time give to the First Respondent a statement in writing that the First Applicant has an application for a tax file number pending and authorising the Commissioner of Taxation to tell the First Respondent if a tax file number is issued to the First Applicant that number or if the application is refused that the application has been refused or if the application is withdrawn that the application has been withdrawn. The First Respondent did, without lawful basis, require the Commissioner of Taxation to provide the First Respondent with information about the First Applicant, including the First Applicant's tax file number and/or, without lawful basis, accessed confidential or private information, including the First Applicant's tax file number, being information that was in the possession of the Commissioner of Taxation. The First Respondent did, without the permission or authority of the First Applicant, obtain the First Applicant's tax file number, store and maintain a record of the said tax file number and use the said tax file number in connection with the First Applicant's identity to determine the First Applicant's Child Support Income amount and the said assessment of child support liability. Section 16B of the Collection Act, referred to in the ASC, provides that the Registrar may request, but not compel, a person who is a payer or payee in relation to a registrable maintenance liability to give the Registrar a written statement of the person's tax file number.