Addison v Gillett
[2021] FCCA 1432
•31 March 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ADDISON v GILLETT & ANOR | [2021] FCCA 1432 |
| Catchwords: CHILD SUPPORT – Application for leave to proceed out of time with an appeal against an AAT Child Support decision – appeal filed nine months out of time – no adequate explanation for delay – no reasonable prospects of success – prejudice to the first respondent mother if leave is granted – application for leave to proceed out of time dismissed. |
| Legislation: Administrative Appeals Tribunal Act 1975 s.44, 44AAA Child Support (Assessment) Act 1989 |
| Cases cited: Gallo & Dawson (1990) HCA 30 Haritos v Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC |
| Applicant: | MR ADDISON |
| First Respondent: | MS GILLETT |
| Second Respondent: | CHILD SUPPORT REGISTRAR |
| File Number: | SYG 2749 of 2020 |
| Judgment of: | Judge Terry |
| Hearing date: | 30 March 2021 |
| Date of Last Submission: | 30 March 2021 |
| Delivered at: | Newcastle |
| Delivered on: | 31 March 2021 |
REPRESENTATION
| Solicitors for the Applicant: | Toronto Legal |
| Counsel for the 1st Respondent: | Mr Bithrey |
| Solicitors for the 1st Respondent: | Harris Kelly & Associates |
| Solicitors for the 2nd Respondent: | Mills Oakley Lawyers |
THE COURT ORDERS ON A FINAL BASIS THAT:
The notice of appeal filed on 4 September 2020 is dismissed.
THE COURT ORDERS PENDING FURTHER ORDER THAT:
The first respondent and the second respondent are to provide to the applicant by no later than 9 April 2021 an itemisation of the costs they are seeking and they are also to forward that document to my Associate.
The matter is adjourned to 9.30am on 14 April 2021 for consideration of any costs applications.
Each of the parties and legal representatives have liberty to attend by telephone on 14 April 2021 by dialling in using the following details:
(a)Phone: 02 9161 1229 Australia, Sydney (Toll)
(b)Conference ID: 172 971 08#
(c)If the court has muted participants, when the matter is called each party and legal representative will need to press *6 to unmute themselves.
IT IS NOTED that publication of this judgment under the pseudonym Addison v Gillett & Anor is approved pursuant to s.110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
SYG 2749 of 2020
| MR ADDISON |
Applicant
And
| MS GILLETT |
First Respondent
And
| CHILD SUPPORT REGISTRAR |
Second Respondent
REASONS FOR JUDGMENT
Introduction
These reasons for judgment were delivered orally and have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
Mr Addison (“the applicant”) seeks an extension of time in which to file an appeal against an AAT Child Support decision made on 5 November 2019.
The application is opposed by the first respondent Ms Gillett and the second respondent Child Support Registrar.
The application was listed for hearing on 30 March 2021. Each party filed comprehensive written submissions. When the matter was called on they all indicated that they did not wish to make any oral submissions and the matter was adjourned to 31 March for delivery of decision.
Background
The applicant and the first respondent were married in 2003 and separated in September 2016. They have two children, X, who was born in 2015 and who is 15, and Y, who was born in 2010 and who is 10.
The children have lived with the first respondent since separation.
Final parenting orders were made by consent on 20 August 2018. Fresh proceedings were subsequently filed as a result of the mother’s wish to relocate and final orders were again made on 10 July 2020 after a hearing.
A child support assessment has been in place for the children since 17 March 2018 with the applicant the person assessed to pay child support to the first respondent.
On 28 August 2018 the first respondent applied for a change of assessment. The second respondent said as follows about this in their written submissions:
On 28 August 2018, the first respondent lodged a change of assessment application on the basis that:
(a)The income, property and financial resources of one or both parents of the child for whom child support was payable made the assessments unfair (Reason 8A); and
(b) The assessment did not accurately reflect one or both parent’s earning capacity (Reason 8B).[1]
[1] Second Respondent’s submissions paragraph 6
The applicant filed a response and lodged a cross-application.
On 24 December 2018 a delegate of the Registrar found that ground 8A, which was one of the grounds the first respondent relied on, was established, and adjusted the applicant’s taxable income for the periods 17 August 2018 to 16 November 2019, 17 November 2019 to 16 February 2020 and 17 February 2020 to 16 May 2021.
The delegate stated that thereafter the normal administrative provisions of the Child Support (Assessment) Act were to apply.
On the same day that this decision was handed down the applicant lodged an objection to the decision. After considering the matter an objections officer partly allowed the objection but overall the outcome was worse for the applicant.
On 1 April 2019 the applicant lodged an application for first review with the Social Services and Child Support Division of the Administrative Appeals Tribunal. The application was duly heard and on 5 November 2019 the Tribunal handed down a written decision in which it affirmed the decision under review.
Pursuant to section 44AAA of the Administrative Appeals Tribunal Act 1975, the applicant had a right to appeal this decision to the Federal Circuit Court on a question of law.
Pursuant to section 44(2A) of the Act, the appeal was required to be lodged within 28 days of the delivery of the decision or within such further time as was allowed by the court. In their written submissions the second respondent said as follows about what this meant:
The Tribunal’s decision was made on 5 November 2019 and given to the applicant by email on 15 November 2019. The applicant was deemed to have received the decision on 15 November 2019; s 161 of the Evidence Act 1995 (Cth). The appeal was therefore required to be filed by 13 December 2019 but was not filed until 4 September 2020, which was 266 days late (or almost nine months).[2]
[2] Second Respondent’s submissions paragraph 28
The applicant asks the court, in the exercise of its discretion, and he would no doubt say in the interests of justice, to allow further time for the appeal to be lodged.
The applicable law
The applicant engaged counsel to prepare written submissions for him and in those written submissions his counsel referred to the following passage from the High Court decision of Gallo & Dawson:
The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties; see Hughes v National Trustees Executors and Agency Co of Australasia Ltd [1978] VicRp 27;(1978) VR 257, at p 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board (1973) 2 NZLR 86, at p 92; Jess v Scott (1986) 12 FCR 187, at pp 194-195. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VicRp 113; [1967] VR 871, at p 872; Hughes, at pp 263-264; Mitchelson v Mitchelson (1979) 24 ALR 522, at p 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has a “vested right to retain the judgment” unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200, at p 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice. As the Judicial Committee of the Privy Council pointed out in Ratnam v Cumarasamy (1965) 1 WLR 8, at p 12; (1964) 3 AII ER 933, at p 935:
‘The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion.’”[3]
[3] Gallo & Dawson (1990) 93 ALR 479
As is clear from that passage and from the wording of s. 44 of the Administrative Appeals Tribunal Act 1975, the court has a discretion about whether to grant an extension of time, and the discretion has to be exercised on a reasonable basis.
There is nothing in any Act or any decision which prescribes the things the court has to take into account in order to determine whether it should grant an extension of time, but a common thread in the submissions of each of the parties, drawn from Gallo & Dawson and other cases like it, was that in considering whether it should grant leave for the application to be filed out of time the court should have regard to:
i)The explanation for delay.
ii)The applicant’s prospects of success.
iii)The prejudice to the first respondent if the time was extended.
I will deal with each of these in turn.
The explanation for delay
The applicant attempted to explain the delay in his affidavit. His evidence about that was summarised in the second respondent’s submissions and in the applicant’s submissions. His counsel’s summary of the explanation for the delay was as follows:
The appeal is filed late. The reasons for lateness are articulated at paragraph 6 of the Affidavit of the Appellant Mr Addison filed with the appeal on 4 September 2020 as:
(a)He had represented himself at the Tribunal as he says he could not afford legal representation.
(b)He sought to engage a solicitor within time. There were some difficulties in that process pre-Christmas.
(c)The husband took some steps relatively early and closer to when the appeal was required to be required without leave in contacting a solicitor, Ms B in December 2019 and then his now solicitor in February 2020.
(d)In December 2019, the father was informed about some enforcement proceedings in the Federal Circuit Court on 6 March 2020 and it seems that in February 2020 (there appears to be an error as to the date in paragraph 6(g)), he spoke with a solicitor at Toronto Legal, his new solicitors.
(e)He had to obtain financial information and documents.
(f)He also says that here were difficulties arising from COVID with his 70 year old solicitor working from home and difficulties arranging meeting with his accountant. (6(o) and (p)).
(g)He was also dealing with his parenting application which ended with a Judgment on 10 July 2020.[4]
[4] Applicant’s submissions paragraph 16
The applicant’s counsel referred to the reasons the applicant gave for the late filing of his appeal as “an explanation of sorts.” However I accept the submissions by the first and second respondent that there is no satisfactory explanation for the delay.
There was a common thread in the submissions of both the first and second respondent as to the problems with the explanation and the second respondent summarised the problems thus:
The applicant has failed to provide a satisfactory explanation for his lengthy delay in commencing the proposed appeal within time. The applicant concedes he only first made enquiries about engaging a solicitor three weeks after the Tribunal made its decision on 5 November 2019. Although he claims he could not afford to pay one solicitor’s fees he has not explained what steps he took (if any) to approach the other solicitors or to seek to obtain pro bono legal advice or assistance. The applicant’s evidence of his attempts to progress his appeal rights since November 2019 is vague and lacks meaningful detail and supporting evidence. He has not acted promptly or proactively. In particular, the six month delay between the date of the enforcement orders and the date the applicant eventually filed the proposed appeal has also not been satisfactorily explained. In any event, there is no right to legal representation and many self-represented applicants are able to file appeals within the specified timeframe.[5]
[5] Second Respondent’s submissions paragraph 31
It is noteworthy, as the first respondent’s counsel pointed out, that during the 266 day period when no appeal was filed the first respondent commenced enforcement proceedings in relation to the outstanding child support debt. Those proceedings were heard and determined and the applicant was represented during those proceedings. A parenting hearing was also conducted during that period and he was represented by counsel at that hearing.
The parenting hearing took place by Microsoft Teams, as occurred for much of last year due to COVID-19 issues. Covid-19 issues did not prevent the Court operating, solicitors operating, or cases being heard and determined. I do not accept that anything to do with the alleged difficulties the applicant’s solicitor may have had are an adequate explanation for why an appeal was not filed for 266 days.
It is important to note that there is no fetter on the Court’s discretion to grant an extension of time, and an inadequate explanation for delay, or even no explanation at all, might not be fatal if there were other strong reasons to exercise the discretion, and one of those might be that there was considerable strength in the appeal.
However on the flip side, even a good explanation for delay might not help if the appeal was considered to be without merit and I next need to consider the merits of the appeal.
The applicant’s prospects of success
Appeals from AAT Child Support first review decisions can only be made on questions of law. The second respondent submitted that the applicant had failed to properly identify and articulate an error of law in his Notice of Appeal and said as follows in their submissions:
A particular question of law, which is said to arise from a decision of a Tribunal, should be stated with sufficient precision.[6] While the second respondent acknowledges the statutory requirement placed on this court to proceed with [sic] undue formality, the Full Court of the Family Court stated at [22] and 24][7]
[6] Haritos v Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC at [62]
[7] Child Support Registrar & Crowley and Anor [2015] FamCAFC 76
Appeals from the Tribunal to, relevantly, the FCCA lie only on a question of law (s 110B of the [Collection] Act.
…
A consequence of the confined nature of appeals from the Tribunal to the FCCA is a requirement that the grounds of appeal to that court be drawn with particular precision which bears that restriction firmly in mind.[8]
[8] Second Respondent’s submissions paragraph 36
I agree that there are drafting issues with the Notice of Appeal but for the purpose of considering the merits of the appeal, it is clear enough that the complaint the applicant makes is about the findings of fact which led the Tribunal to set his adjustable taxable income at $128,716.00 per annum for the period 17 August 2018 to 31 October 2021. It is the applicant’s case that the Tribunal should not have gone behind his taxable income, which for 2018/2019 was $57,876.00 and for the earlier year was $73,000.00-odd.
The second respondent submitted and I accept that it is clear from the Tribunal’s decision is that it’s findings about the applicant’s income were based on the information he provided about his income when he applied for a loan from C Bank.
The applicant’s counsel made lengthy submissions in the case outline document he prepared about why it was wrong for the Tribunal to rely on that information. He said as follows:
In summary, the Tribunal Member appears to have taken the principle that he is not required to undertake a major audit to be a basis for abandoning any enquiry in relation to the documents that were available and instead absolving that fact finding process to an ambiguous and largely unknown process conducted by a third party being the C Bank.
That approach is wholly unsatisfactory and amounts to an error of law.
The problem for the applicant however is that the error he identifies, the finding about the applicant’s income, is an error of fact and it is only in limited circumstances that an error of fact can amount to an error of law.
Both the second respondent’s counsel and the first respondent’s counsel referred to the case of Minister for Immigration and Multicultural Affairs & Al-Miahi [2001]. In the second respondent’s submissions some principles from the case are extracted but I am going to include in the settled reasons the passage from the decision from which those principles were extracted, because it sets out clearly why the assertion by the applicant that the Tribunal has made an error of law cannot be sustained.
In that case the Full Court of the Federal Court said as follows:
There is no error of law simply in making a wrong finding of fact. Even if the reasoning whereby the Court reached its conclusion of fact were demonstrably unsound, that would not amount to an error of law. A party does not establish an error of law by showing that the decision-maker inferred the existence of a particular fact by a faulty process, for example by engaging in an illogical course of reasoning. Thus, at common law, want of logic is not synonymous with error of law. So long as the particular inference is reasonably open, even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.[10]
[10] Minister for Immigration and Multicultural Affairs & Al-Miahi [2001] FCA 774.
That is a strong statement from that particular case about what needs to be established in order to establish an error of law.
The applicant’s counsel in his written submissions argued that it was erroneous for the Tribunal to rely on the C Bank information but the Tribunal were entitled to do so and an examination of the decision at paragraphs 25 through to 29 does not even raise a question about whether there was some illogicality in the reasoning which led to the Tribunal’s decision.
There was no procedural unfairness to the applicant in the Tribunal relying on the information in the C Bank documents. In their decision they recorded the fact that the applicant disputed the weight that should be placed on the information, so the applicant was well aware that this document was before the Tribunal. I accept the submission by the second respondent’s counsel that the Tribunal was not obliged to tell the applicant about the inferences they intended to draw from it, and that it must have been abundantly clear to the applicant during the course of the hearing before the Tribunal that the Tribunal was likely to rely on the information in that document when coming to a conclusion about whether the applicant’s taxable income was an accurate representation of the actual income available to him.
I accept the following submission by the second respondent.
The complaints and challenges asserted by the applicant in grounds one and two, in substance, merely express disagreement with the Tribunal’s factual findings about the evidence before it and the weight it attributed to such evidence and invites the court to engage in impermissible merits review.[11]
[11] Second respondent’s submissions, paragraph 46.
The second respondent also said as follows:
The Tribunal (at [24]) was not persuaded that his taxable incomes were an accurate reflection of his income, property and financial resources and considered his income estimate for the purposes of the C Bank loan applications was the best evidence available ([28]). The Tribunal was entitled to accept or reject or give such weight to the evidence as it considered appropriate.[12]
[12] Second respondent’s submissions paragraph 49.
On the basis of the information from C Bank and the other information available to it the Tribunal made a finding that a ground for a departure existed. It then considered whether it was just and equitable and otherwise proper to make an order departing from the administrative assessment. There is nothing on the face of their decision to suggest that they failed to follow the proper steps in coming to their ultimate conclusion.
I am not determining the appeal today, that is not my role, but on the face of the evidence available to me, and after carefully reading the applicant’s submissions, I cannot be satisfied that there is a reasonable likelihood that the applicant is going to succeed if he is allowed to proceed with his appeal.
The prejudice to the first respondent if an extension of time is granted
The final thing that is normally considered in determining whether to grant an extension of time is prejudice to the respondent if there is an extension of time and the relevant respondent here is of course the first respondent, the mother of the children, the person entitled to the child support.
I accept the submission by the first respondent’s counsel that the first respondent would suffer some prejudice if the court allowed an extension of time. She would have to take part in the appeal, continue to instruct lawyers and pay legal fees and be subject to a good deal of stress in circumstances where she cannot have expected that to happen given the length of time between when the decision was handed down and when the appeal was lodged.
Conclusion
I am satisfied that an extension of time to lodge the appeal should not be granted. The explanation for delay is inadequate and the respondent would suffer some prejudice if the applicant was allowed to proceed and when that is added to the fact that the applicant has been unable to demonstrate that the appeal has merit, a very strong case is made out for dismissing the application for an extension of time.
I certify that the preceding forty five (45) paragraphs are a true copy of the reasons for judgment of Judge Terry
Associate:
Date: 2 July 2021
[9] Applicant father’s written submissions paragraphs 55 & 56
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