BONNER & NEVILLE (SSAT APPEAL) - [2010] FMCAfam 848

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BONNER & NEVILLE (SSAT APPEAL)

[2010] FMCAfam 848

CHILD SUPPORT – Appeal from SSAT – parties consent to setting orders aside – whether Court should exercise discretion.

Child Support (Registration and Collection) Act (1988), s.110B

Applicant:

MR BONNER

Respondent:

MS NEVILLE

File Number:

BRC 8899 of 2007

Judgment of:

Slack FM

Hearing date:

9 July 2010

Date of Last Submission:

9 July 2010

Delivered at:

Brisbane

Delivered on:

16 July 2010

REPRESENTATION

Counsel for the Applicant:

Mr Black

Solicitors for the Applicant:

Bruce Thomas Lawyers

Solicitors for the Respondent:

Dale & Fallu Solicitors

ORDERS

That the decision of the Social Security Appeals Tribunal made on

5 March 2010 be set aside.
That the case be remitted to the Social Security Appeals Tribunal to be heard and decided again.
That there be no order as to costs.

IT IS NOTED that publication of this judgment under the pseudonym Bonner & Neville (SSAT Appeal) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT Brisbane

BRC 8899 of 2007

MR BONNER

Applicant

And

MS NEVILLE

Respondent

REASONS FOR JUDGMENT

This is an Appeal from a decision of the Social Security Appeals Tribunal (hereafter “the SSAT”) made on 5 March 2010.
When the matter first came before me I was advised that the parties had come to an agreement and were seeking orders by consent that the decision of the SSAT made on 5 March 2010 be set aside; and that the case be remitted to the SSAT to be heard and decided again; and that there be no order as to costs.
At the time, I expressed some concern about whether such an order can be made by consent.
Section 110B of the Child Support (Registration and Collection) Act (hereafter “the Registration and Collection Act”) provides that a party to a proceeding before the SSAT may appeal to a Court having jurisdiction under this Act on a question of law from any decision of the SSAT in that proceeding.
Whilst I acknowledge that the parties have come to some understanding about this particular outcome, I am not persuaded that the Court should simply make orders by consent with respect to the Appeal.
I consider that I need to be satisfied, as best I can in the circumstances, that there was an error of law with the SSAT hearing, or in the SSAT decision. I consider I ought not only take into account that there are statutory limits to the ability of this Court to the setting aside of orders made by the SSAT, but that, as a matter of public policy, it seems to me that I ought to take into account the interests of other people who are awaiting hearings before the SSAT.
To that extent, insofar as I am able, I consider that I need be satisfied that there is sufficient basis in law for the orders that are sought notwithstanding the agreement of the parties.
One of the difficulties that I am faced with, of course, is that there is no real contradicter to the application and both parties, by their consent, seem to be prepared to acknowledge that there was an error of law on the SSAT decision.
I have reviewed the decision of the SSAT and I have reviewed some of the documents in relation to the matter. It would appear, from the reasons of the SSAT, that the SSAT placed significant weight in this matter upon the evidence of the respondent in the proceedings. The SSAT seemed to place significant weight on a finding that the applicant had failed to attend the hearing and that he had avoided disclosure.
The first two grounds of appeal relate to issues of procedural fairness.
The background in relation to this particular question is that the matter was listed for a hearing before the SSAT in which it was intended that both parties were to appear. The applicant in this appeal did not appear at the hearing before the SSAT. It appears from the reasons that an oral hearing was conducted with the respondent in this appeal and the matter was adjourned. The applicant in these proceedings was given notice that the SSAT would receive further submissions in writing and a date was given for those further submissions before any further action was to be taken in the decision.
It is not clear to me whether the applicant put further submissions before the SSAT before it made its decision but it does appear that he was not made aware of the oral testimony that had been given by the respondent to this Appeal during the course of the hearing. I should say that the failure by the applicant in these proceedings to attend the hearing by telephone was due entirely to his own mistake. He had assumed a particular time for the hearing and was wrong in that assumption.
There was no error on the part of the SSAT in the way that it attempted to contact the applicant in these proceedings.
Having said that, the other evidence is (which is not in dispute), having discovered his mistake, the applicant in these proceedings contacted the SSAT in an endeavour to either reschedule the hearing or to place his evidence before the SSAT. It is not clear to me that the SSAT reconvened to consider his request, or indeed his application, if that was what it was. He was afforded the opportunity to put in further written submissions, but as I say, it is not clear from the reasons that he was ever apprised of the evidence that was given by the respondent orally in those proceedings.
The failure by the applicant to appear was, as I say, due to his own mistake. The SSAT is entitled to proceed on the basis that parties will comply with its directions and ensure that they make themselves available for the hearing. The mere fact that the applicant was not afforded an opportunity to appear at that hearing due to his own mistake would not necessarily in my consideration ordinarily, result in a decision being set aside. To come to that conclusion, would mean that parties could potentially obfuscate the proceedings before the SSAT and, to my mind, parties have to bear responsibility for ensuring that they are ready and able to conduct a hearing.
Having said that, it appears from the decision of the SSAT that the SSAT placed a significant amount of weight upon the evidence of the respondent and, indeed, came to a number of conclusions as a result of the failure of the applicant to appear, not the least of which was that, on the evidence, seems to be a conclusion that he had not complied with directions and was avoiding giving evidence before the SSAT. He was not given the opportunity to explain his failure.
As I say, whilst there was a responsibility on the applicant to ensure that he was able to conduct the hearing in the way that the matter was directed, nevertheless, the question of whether he was afforded sufficient procedural fairness in this matter, to my mind, is attended with sufficient doubt to warrant the orders that are sought by the parties. As I indicated, the difficulty is that I do not have a contradictor to that position. I can assume, at least, that the respondent in these proceedings considers that there are sufficient grounds to warrant a rehearing of this particular application.
I do not intend to reach any conclusions about the further grounds of appeal in relation to this matter, again, because there is no contradictor in relation to that issue. Whilst I would not want this example to become a standard bearer for difficulties that the SSAT may face in the future with applicants or respondents who do not comply with directions, I am satisfied, in the circumstances of this case, that there is sufficient concern about the issue of procedural fairness, given the findings that were ultimately made by the SSAT, to warrant the orders being set aside and to make the orders that are asked for by both parties in the proceedings.
As a consequence, and for those reasons, I will make those orders.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Slack FM

Associate: Karen Smith

Date: 20 August 2010