BCNW and Child Support Registrar (Child support second review)

[2023] AATA 768

BCNW and Child Support Registrar (Child support second review) [2023] AATA 768 (14 April 2023)

Division:GENERAL DIVISION

File Number:          2023/0108

Re:BCNW

APPLICANT

AndChild Support Registrar

RESPONDENT

AndZTHC

OTHER PARTY

DECISION

Tribunal:Member Lee Benjamin

Date:14 April 2023

Place:Brisbane

The application is dismissed pursuant to subsection 42A(2) of the Administrative Appeals Tribunal Act 1975 (Cth).

.................................[SGD].....................................

Member Lee Benjamin

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 (Cth).

Catchwords

PRACTICE AND PROCEDURE – application for extension of time – power of Tribunal to dismiss an application under subsection 42A(2) - application dismissed by reason of the applicant’s failure to appear at an interlocutory hearing.

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Cases

Avetmiss Easy Pty Ltd and Australian Skills Quality Authority [2014] AATA 99

Confidential and Child Support Registrar [2010] AATA 577

TNPX and Secretary, Department of Social Services [2020] AATA 3729

REASONS FOR DECISION

Member Lee Benjamin

14 April 2023

1. BCNW seeks review of a decision made by the Social Services & Child Support Division of the Administrative Appeals Tribunal on 7 November 2022. BCNW was required to, but did not, file her review application within 28 days of that decision. BCNW now seeks an extension of time for making her review application.[1]

   [1] The Child Support Registrar, as the Respondent, did not oppose BCNW’s extension of time application. ZTHC, as the Other Party, opposed BCNW’s extension of time application. 

2. An interlocutory hearing to consider the extension of time application was listed for 11 April 2023 at 10am by telephone. I am satisfied that the parties to the application were duly notified of the listing.

3. The interlocutory hearing proceeded as scheduled. The Tribunal attempted, unsuccessfully, to contact BCNW on the telephone number that BCNW provided to the Tribunal for this purpose. Accordingly, the Tribunal was unable to connect BCNW to the interlocutory hearing and BCNW failed to appear.

4. Subsection 42A(2) of the Administrative Appeals Tribunal Act 1975 (Cth) provides that the Tribunal may dismiss an application where a party to the application fails to appear at the hearing of the proceeding:

   Dismissal if party fails to appear

   (2)  If a party to a proceeding before the Tribunal in respect of an application for the review of a decision (not being the person who made the decision) fails either to appear in person or to appear by a representative at a directions hearing, or an alternative dispute resolution process under Division 3, held in relation to the application, or at the hearing of the proceeding, the Tribunal may:

   (a)  if the person who failed to appear is the applicant--dismiss the application without proceeding to review the decision; or

   (b)  in any other case--direct that the person who failed to appear shall cease to be a party to the proceeding.

5. The Respondent helpfully drew my attention to two conflicting Tribunal decisions on the operation of subsection 42A(2) in circumstances, where, as in here, a party failed to appear at a hearing at which an extension of time application was to be considered. Deputy President S. Forgie in Confidential and Child Support Registrar [2] found that the Tribunal did not have the power to dismiss an extension of time application under subsection 42A(2) by reason of the applicant’s failure to appear at a hearing. Deputy President J. Constance in Avetmiss Easy Pty Ltd and Australian Skills Quality Authority[3] found that the Tribunal did have the power to dismiss under subsection 42A(2) under the same circumstances.

   [2] [2010] AATA 577.

   [3] [2014] AATA 99.

6. Member D Mitchell in TNPX and Secretary, Department of Social Services[4] carefully considered the above two conflicting Tribunal decisions and preferred the approach adopted by Deputy President Constance in Avetmiss Easy:

   …Deputy President Constance applied his statutory construction in Somba and Minister for Immigration and Border Protection (Migration) [2018] AATA 1626, which was not displaced by the Federal and Full Federal Courts [footnotes omitted] or by Deputy President Boyle in Somba and Minister for Home Affairs (Migration) [2020] AATA 425 throughout the appeal process.[5]

   [4] [2020] AATA 3729.

   [5] [2020] AATA 3729 at [15].

7. I respectfully agree with Deputy President Constance and Member Mitchell. I find that the Tribunal has the statutory power to dismiss an extension of time application under subsection 42A(2) by reason of BCNW’s failure to attend the interlocutory hearing on 11 April 2023. Accordingly, BCNW’s extension of time application is dismissed.

I certify that the preceding 7 (seven) paragraphs are a true copy of the reasons for the decision herein of Member Lee Benjamin

.............................[SGD]...................................

Associate

Dated: 14 April 2023

Date of hearing:	11 April 2023
Applicant:	BCNW
Solicitors for the Respondent:	Ms Gillian Gehrke Services Australia
Other Party:	ZTHC