Bakshi and Child Support Registrar (Child support)

[2019] AATA 6409

Bakshi and Child Support Registrar (Child support) [2019] AATA 6409 (4 December 2019)

DIVISION:Social Services & Child Support Division

EXTENSION APPLICATION

NUMBER:2019/SC017452

APPLICANT:  Mr Bakshi

OTHER PARTY:  Child Support Registrar

DATE DECISION MADE:               4 December 2019

APPLICATION:

An extension application made on 19 September 2019 asking the AAT to consider the application for AAT first review of a decision of the Child Support Registrar on 5 August 2019 despite the period for applying for review having ended.

DECISION:

The extension application is refused.

CATCHWORDS

CHILD SUPPORT – application for extension of time – little explanation for the delay – no merit – high degree of prejudice to other party – extension of time refused

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 16(2AB)-16(2AC) of the Child Support (Registration and Collection) Act 1988.

STATEMENT OF REASONS

1. This is an application by Mr Bakshi for an extension of time to apply to the Tribunal against a decision of the Child Support Agency (CSA) dated 5 August 2019. The CSA decided to disallow Mr Bakshi’s request for an objection of time to object to an original “change of assessment” decision made on 3 July 2014 (more than five years ago) which set his adjusted taxable income for the purposes of calculating his child support liability. 

2. There is a time limit to apply for “AAT first review”: see section 90 of the Child Support (Registration and Collection) Act 1988 and paragraph 29(1)(d) of the Administrative Appeals Tribunal Act 1975. Mr Bakshi was required to make his application within 28 days of receiving the decision posted to him on 5 August 2019, deemed to have been delivered to him in the ordinary course of the post.

3. Mr Bakshi made an application for AAT first review on 19 September 2019, outside the 28-day period. In his written application to the Tribunal, Mr Bakshi advised that he suffers from [Medical condition 1], and was unable to make his application within time.

4. The established cases indicate that the starting position is the prima facie rule that proceedings commenced outside a statutory period will not be entertained (Lucic v Nolan (1982) 45 ALR 411 at 416). However, the primary concern “is to do that which will enable justice to be done between the parties” (see Martinsen v Secretary, Department of Family & Community Services [2004] FCA 297 per Spender J). Spender J quoted McHugh J in Gallo v Dawson (1990) 64 ALJR 459 as follows:

   In order to determine whether the rules [imposing time limits] 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 ...

   When the application is for an extension of time … it is always necessary to consider the prospects of the applicant succeeding in the appeal …

5. In line with Wilcox J’s survey of cases in Hunter Valley Developments P/L v Cohen (1984) 3 FCR 344, the Tribunal proposes to consider the matters identified in Gallo v Dawson under the following headings:

   ·the explanation for the delay;

   ·the merits of the substantial application;

   ·any prejudice to the other party, including any prejudice in defending the proceedings occasioned by the delay; and

   ·any public interest considerations that might flow from a successful application including “the unsettling of other people … or of established practices”.

Explanation for the delay

1. The absence of a reasonable explanation for delay will ordinarily exclude the granting of an extension of time.

2. Mr Bakshi was clearly advised of his right to seek further review by the Tribunal within 28 days. Without further medical evidence, the Tribunal does not consider the explanation for the delay particularly compelling; however, the Tribunal observes that the delay here is very short.

Merits of the objection

1. There is no point to granting an extension of time if an application is unlikely to succeed.

2. Mr Bakshi is seeking the right to object to a decision made in 2014. The CSA decision-maker observed the following on 5 August 2019:

   In regard to contacting Mr Bakshi, department records confirm Mr Bakshi was sent the Change of Assessment decision in writing on 3 July 2017. Successful contacts are also recorded on 3 July 2014 and 19 December 2014 confirming Mr Bakshi was provided with an explanation of the decision including his right to object and the required timeframes.

   In his statement, Mr Bakshi states his [Medical condition 1] was the reason he was not able to avail himself of legal assistance, however the objection process does not require Mr Bakshi to seek legal assistance in order for an objection to be lodged.

   Whilst Mr Bakshi has now sought a review of the decision dated 3 July 2014, Mr Bakshi`s objection is lodged 1825 days out of time. Mr Bakshi has not presented any information or evidence, which would show there was a life event so significant as to have affected his ability to lodge this objection prior to the date he had.

10.The Tribunal respectfully agrees with those observations. In the Tribunal’s assessment, there is no prospect that the Tribunal could be satisfied Mr Bakshi has a satisfactory explanation for what is an extraordinary delay. This weighs very heavily against granting an extension.

Potential prejudice to the other party

11.The Tribunal is particularly concerned about potential prejudice to the other party. She has been entitled to rely, and budget, upon the original decision. This factor weighs against an extension being granted.  

Public interest considerations

12.Parliament has seen fit to set a 28-day time limit for the lodgement of objections so that parents (and the CSA) can act with certainty as to the outcome when the objection period has elapsed. The public has an interest in reviews of decisions made by the CSA being performed in a timely fashion and in a manner that ensures all applicants are treated fairly and equally. Accordingly, an extension of the time for objection is not to be automatically granted.

Conclusion

13.In the Tribunal’s assessment, Mr Bakshi’s application, if permitted to proceed, would have no prospects for success.

14.The Tribunal considers the interests of justice are clearly best served by refusing to grant an extension of time.