Attwell v Child Support Registrar

[2017] FCCA 598

FEDERAL CIRCUIT COURT OF AUSTRALIA

ATTWELL v CHILD SUPPORT REGISTRAR & ANOR [2017] FCCA 598

Catchwords:
CHILD SUPPORT – Application for an extension of time to seek leave to appeal the decision of the Tribunal – no adequate explanation for the 540 day delay – the delay is prejudicial to the Child Support Registrar – grounds lack sufficient merit to warrant an extension of time – adjournment application refused – application for an extension of time dismissed.

Legislation:

Administrative Appeals Tribunal Act 1975, ss.44(2A), 44AAA

Applicant: MR ATTWELL

First Respondent: CHILD SUPPORT REGISTRAR

Second Respondent: MS ATTWELL

File Number: SYG 509 of 2017

Judgment of: Judge Street

Hearing date: 27 March 2017

Date of Last Submission: 27 March 2017

Delivered at: Sydney

Delivered on: 27 March 2017

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Ms B Rayment
Mills Oakley Lawyers

ORDERS

1. Leave to the Applicant to file in Court and rely upon the affidavit dated 10 March 2017.

2. The application for an extension of time is dismissed.

3. The Applicant pay the First Respondent’s costs fixed in the amount of $3,478.00.

IT IS NOTED that publication of this judgment under the pseudonym Attwell v Child Support Registrar & 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 SYDNEY

SYG 509 of 2017

MR ATTWELL

Applicant

And

CHILD SUPPORT REGISTRAR

First Respondent

MS ATTWELL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application within the Court’s jurisdiction under s.44AAA of the Administrative Appeals Tribunal Act1975 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 21 July 2015. The application for relief in this Court was filed on 21 February 2017 under s.44(2A) of the Act as picked up by s.44AAA of the Act. The application must be filed within 28 days or within such further time as the Court allows.

Application for an extension of time to seek leave to appeal

1. In the present case, the application was filed 540 days late requiring an extension of time in order to seek leave to appeal the Tribunal’s decision. The relevant considerations in relation to the grant of leave are in summary, the length of delay, the reason for the delay, the prejudice to the respondents and the merits of the proposed appeal.

2. Ms Rayment the solicitor for the Child Support Registrar, summarised reasons why leave should not be granted. These reasons included the very substantial period of delay, what was then the understanding that there was no explanation for the delay, the prejudice to the respondents, the failure to serve the second respondent, and the want of merits in the proposed appeal.

3. This matter came before the Court on 16 March 2017, at which time the applicant had a solicitor appear, albeit there was no solicitor on the record and the proceedings were commenced by the applicant.  On that occasion, the Court explained that the application appeared not to identify any arguable question of law and that there appeared to be a real issue with whether leave should be granted, or whether the proceedings should be summarily dealt with. The issue of the want of service of the applicant’s former wife was also flagged as a relevant consideration.

4. The proceedings came before the Court at the same time as enforcement proceedings by the Child Support Registrar that had been commenced on 16 September 2016, which sought the enforcement of the child support payments outstanding as a result of the present subject matter’s in the application for leave. It is apparent that those proceedings were served on the applicant in these proceedings in October 2016. It is manifest that these proceedings were commenced in response to the enforcement steps taken by the Child Support Registrar.

Adjournment application raised from the bar table

1. From the bar table the applicant sought an adjournment on the grounds that he had been abandoned by his solicitor and that he had been unable to obtain a solicitor to act for him. The applicant asserted that the proceedings were complex and that he needed a lawyer to represent him. There is no entitlement to legal representation in relation to these proceedings.

2. This matter was originally listed for hearing at 3:30pm today and was stood down until 4:00pm so that an interpreter could be present to explain the nature of the proceedings to the applicant.

3. The Court explained that it would hear first the application made by the Registrar in relation to the appeal proceedings. Ms Rayment, the solicitor on behalf of the Child Support Registrar, explained the reasons why leave should not be granted and why there was no question of law enlivening this Court’s jurisdiction. Ms Rayment explained why the grounds identified were in substance, seeking to challenge findings of fact that were open to the Tribunal and why the Tribunal made adverse credit findings given the applicant’s failure to comply with disclosure applications. Ms Rayment opposed the grant of leave to extend time.

4. The applicant indicated that he wished to seek an adjournment, and explained what had occurred in relation to his lawyer abandoning him, and that the applicant needed legal assistance. It is relevant that these proceedings were commenced by the applicant without legal representation.

5. It is apparent that these proceedings were commenced as a result of enforcement steps taken by the Child Support Registrar. While the Court indicated it is prepared to accept the applicant’s assertions of fact as to the abandonment of him by his current solicitor and the applicant’s assertions of fact that he has not been able to obtain any other solicitor, that does not of itself justify the granting of an adjournment. 

6. In circumstances where these proceedings were before the Court on 16 March 2017, where the issues of concern were raised by the Court with the applicant’s representative and in circumstances where it is apparent that the applicant filed the initiating proceedings, after hearing from the applicant and the opposition to the granting of an adjournment by the Child Support Registrar, the Court foreshadowed that it would deliver reasons in relation to the refusal of the adjournment.

Consideration of delay, prejudice and merits in granting an adjournment

1. The Court proceeded to invite the applicant to address the issues of delay, prejudice and merits. At this point, the applicant produced an affidavit dated 10 March 2017 which amongst other matters, addressed the issue of delay. The applicant new that that document had not earlier been given to the Child Support Registrar. I am satisfied that the applicant has had a reasonable and proper opportunity to present his explanation for the delay. I am satisfied that the applicant has had a reasonable opportunity to obtain representation since he became aware of the enforcement proceedings if he wished to challenge the decision of the tribunal.

2. I regard the holding back of the affidavit sworn on 10 March 2017 as further relevant conduct in assessing whether any adjournment application should be granted.  I am satisfied that the applicant has had a reasonable opportunity to present material in relation to his application for leave. I am not satisfied that an adjournment would be of any utility. On material before the Court, an adjournment would only add unnecessarily into the costs of the Child Support Registrar in respect of proceedings which on their face, appear doomed to failure. I am not satisfied that an adjournment is warranted in the interests of the administration of justice. 

Consideration of the application for an extension of time

1. In relation to the explanation for the delay, the applicant relied upon material identifying that he is suffering from diabetes as well as associated problems and mental health issues. None of those matters adequately explain the 540 day delay.

2. I would refuse the grant of leave based on the inadequate delay and the prejudice to the respondent and the failure of the applicant to have served the ex-partner. In any event, turning to the merits, it is apparent that none of the grounds of appeal properly reflect any real question of law.

3. The Tribunal identified evidence that supported its adverse findings and the evidentiary findings by the Tribunal cannot be said to lack an evident and intelligent justification. Grounds 1 to 4 in substance are challenges to findings of fact and lack sufficient merit to warrant an extension of time in the interests of doing justice between the parties. The Court is not satisfied that an extension of time is warranted under s.44(2A) of the Administrative Appeals Tribunal Act1975 (Cth) in the interest of the administration of justice.

Conclusion

1. The application for an extension of time is dismissed.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 6 April 2017