CONFIDENTIAL and and CONFIDENTIAL JOINED Party Joined EXECUTIVE DIRECTOR, SOCIAL SECURITY APPEALS TRIBUNAL

[2010] AATA 568

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 568

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  2010/1257

GENERAL ADMINISTRATIVE DIVISION		)
Re		CONFIDENTIAL

Applicant

And

And

CONFIDENTIAL JOINED

  Party Joined

EXECUTIVE DIRECTOR, SOCIAL SECURITY APPEALS TRIBUNAL

Respondent

DECISION

Tribunal Ms G Ettinger, Senior Member

Date30 July 2010

PlaceSydney

Decision The Tribunal decides that pursuant to section 92(7) of the Child Support (Registration and Collection) Act 1988, the decision under review is set aside.
The time for lodging an application by the Applicant for a review of the decision made by the Child Support Agency is extended to 14 January 2010 in order to permit that review to proceed.

.................[sgd].............................

Ms G Ettinger
  Senior Member

It is noted that publication of this decision is approved by the Administrative Appeals Tribunal pursuant to section 110X(4)(h) of the Child Support(Registration and Collection) Act 1988 (Cth).

CATCHWORDS

CHILD SUPPORT – Application for extension of time to lodge application for review – whether it is reasonable in all the circumstances to grant the extension – explanation for delay – substantive application has merit – reasonable in all the circumstances – extension of time permitted.

Child Support (Registration and Collection) Act 1988 s 92

Budd v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540

Comcare v A’Hearn (1993) 45 FCR 441

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

REASONS FOR DECISION

30 July 2010	Ms G Ettinger, Senior Member
BACKGROUND

1.      The Applicant and his ex-wife, the Party Joined, separated in January 2005, and in August 2005, entered into an agreement to share the care of their three children. The following year they were involved in Family Court proceedings; child support issues are ongoing. Both the Applicant and the Party Joined have since remarried, child support issues have changed, and the Applicant has a further child born of his remarriage. His present wife has three other children.

2.      As concerns the present case, I note that the Child Support Agency (CSA) made a decision on 25 August 2008 changing the child support assessment for the period July 2008 to June 2011. The Applicant appealed that decision, and on 14 November 2008, the CSA disallowed his objection. He was advised that he had 28 days in which to appeal to the Social Security Appeals Tribunal (SSAT). He was in touch with the CSA almost immediately, and made several other written contacts after the decision was made, but did not lodge a formal appeal until 14 January 2010, approximately 14 months later. 

3.      On 3 March 2010, the SSAT rejected the Applicant’s application for an extension of time to lodge the appeal. The Applicant appealed to this Tribunal against that decision.  His ex-wife was joined as a party, and opposed the extension of time.

4.      Notwithstanding the length of time which has elapsed, I found in weighing up all the factors, that it was reasonable in all the circumstances to exercise the discretion to allow the extension of time. My reasons follow.

ISSUE BEFORE THE TRIBUNAL

5.      The application before me was for extension of time for the Applicant to lodge an appeal against the CSA decision.

LEGISLATIVE CONTEXT

6.      The relevant legislation is the Child Support (Registration and Collection) Act 1988, in particular section 92:

92  Consideration of applications for extension of time for applying for review

(1)If a person applies to the SSAT under section 91 in relation to an application for review, the SSAT Principal Member must:

(a)consider the extension application; and

(b)within 60 days after the extension application is received by the SSAT, grant or refuse the extension application; and

(c)if the extension application is granted—deal with the application for review under this Part.

…

(7)A person whose extension application has been refused by the SSAT Principal Member may apply to the AAT for review of the decision.

…

THE HEARING

7.      In order to exercise the discretion to extend time to lodge a claim, I must take into account well established principles which have been enunciated in the case of Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, and modified in Comcare v A’Hearn (1993) 45 FCR 441.

Prescribed period not to be ignored

8.      Wilcox J stated in Hunter Valley that: The ‘prescribed period’ … is not to be ignored … Indeed, it is the prima facie rule that proceedings commenced outside that period will not be entertained ...

9.      It was not in dispute, and I accepted, that in this case, some 14 months had elapsed before the formal application for review was made.

Reasons for delay

10.     The Applicant stated that he had written letters to CSA on many occasions complaining about the decision to impose the child support assessment made in its decisions of 25 August 2008 and 14 November 2008.  He did not appear to have realised that the period prescribed for an appeal was 28 days. His view was that CSA was inefficient, took too long to reply to his complaints, lost correspondence he had sent, and did not take information he had submitted into account in making its decision of 25 August 2008.

11.     The Applicant said that the SSAT conceded he had been stressed due to problems arising out of the child support and child access issues in 2009. He also indicated that at T6/60, the Objections Officer when reviewing the primary decision, accepted that documents the Applicant had sent in, went astray. I noted that she had written as follows:

I note for the sake of completeness that the additional information provided by Mr… [the Applicant] during the Change of Assessment process showing debts owed by the business to his creditors was received by the Child Support Agency and a copy sent to Mrs …, however it does not seem that the Senior Case Officer was privy to those documents when making her decision. I apologise to Mr … for this oversight and will now take those documents into account when considering his grounds of objection.

12.     The Applicant also tendered a letter from the CSA to him dated 8 January 2009 (Exhibit A1), which did not form part of the T-documents, and in which the provision of further financial statements from him was discussed. He expressed a general irritation that the letter had been omitted from the T-documents, and that he had been telephoned and asked for further financial information a day before the objection decision was made on 14 November 2008.

13.     The Applicant also tendered a Statement and attachments (Exhibit A2), showing he had made telephone calls, and sent emails discussing his family situation.

14.     Needless to say, the Party Joined opposed the extension of time, telling me that the CSA had made its decision in November 2008 after an exhaustive process in which she had had to provide tax records and group certificates. She said it was well known to the Applicant, to her, and to others, that there was a 28 day threshold in which the decision could be appealed. She implied the Applicant had declined to supply certain documents or disclose information about his second job. She said that he owed $7,500 in child support, and that the estimate of his income being $60,000 was conservative. The Party Joined expressed distress at the thought of having to go back to another hearing of the matter.

15.     I have noted that in Budd v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540, Cowdroy J, referring to a decision of Federal Magistrate McInnis stated at [18]:

… In Phillips v Australian Girls’ Choir Pty Ltd & Anor [2001] FMCA 109 Federal Magistrate McInnis considered the nature of the discretion contained in s 44(2A)(a) of the AAT Act, and said at [10]:

In the light of A’Hearn’s case, it is clear that at least one of the principles referred to by Wilcox J in the Hunter Valley decision needs to be modified namely that it should not be any longer regarded as law that the inexcusable delay on the part of a solicitor should be visited upon the client and nor should it be a principle that there is in fact a pre-condition to the exercise of discretion in favour of the applicant for extension to show an acceptable explanation for delay or that it’s fair and equitable in the circumstances to extend time. …

16.     I am satisfied that the CSA gave the Applicant several opportunities to lodge an appeal, and drew the 28 day period to his attention on a number of occasions. However, I also accept that he was distressed over the years 2008/9, noting the letters he wrote and matters raised in Exhibits A1 and A2, and accept he may not have realised the urgency of the action he needed to take.  I am satisfied that he did not rest on his rights, and has shown by his conduct that he has felt aggrieved since the decisions were made. I am mindful also that although the Applicant has expressed reasons for the delay in applying for review, an acceptable explanation for delay is not a pre-condition to the exercise of the discretion to extend time. 

Whether the Applicant rested on his rights

17.     I am satisfied from the oral evidence the Applicant gave, and the letter of 18 December 2009 which is at T8/130 that he did not rest on his rights, but wrote letters of complaint regarding the CSA decisions of 25 August 2008 and 14 November 2008.  His letter of 18 December 2009 refers to letters dated 14 September 2008, 16 September 2008, 18 November 2008 and 27 March 2009.

Prejudice

18.     The Party Joined submitted that contrary to her ex-husband’s submissions, it was she who was the victim in this matter. She said that decisions regarding the matter of child support assessment between the couple had been made three times, with findings going against the Applicant. She said that it was clear to all that the 28 days allowed for an appeal had long past, that everyone knew about the period, and that she felt any further hearing would prejudice her.

19.     I am satisfied that the substantial application concerns the Applicant’s financial situation, and that whilst there may be inconvenience, there would be no prejudice to the Party Joined if an extension of time is granted.

Merits of the case

20.     I am not required in considering an extension of time to conduct a close analysis of the substantial issues in the case.

21.     I note that the Party Joined is in another marriage now, and has two of the three children to support. The Applicant has also remarried, to a woman with three children of her own, and now has a baby with her.

22.     I have taken into account the Applicant’s evidence that his small business which he ran for 14 years is closing, that he owes money to creditors, and that as of 7 June 2010, he has lost his second job. The Applicant told me that he now has further updated documents as evidence. The financial situation may have changed somewhat.

23.     In summary, the case is not without merit, and the Applicant may succeed at hearing. It is certainly a factor I can take into account in exercising the discretion to allow the extension of time.

Other considerations

24.     In considering whether an extension of time is fair to others in a like position, given the Applicant did not rest on his rights, the merits of the case as discussed above, and the possibility of success at hearing, I find on the evidence before me that the extension of time application should be granted. As already noted, normally proceedings commenced outside the prescribed period will not be entertained unless it is proper to do so. Given the reasons referred to above, I am satisfied that it is proper to allow an extension of time.

CONCLUSION

25. Having regard to section 92(7) of the Child Support (Registration and Collection) Act 1988, and the indicia in Hunter Valley and in A’Hearn, as discussed in the paragraphs above, and the evidence before me, I find that it is reasonable in all the circumstances to exercise the discretion to grant an extension of time for the Applicant to make an application for review of the CSA decision.

DECISION

26. The Tribunal decides that pursuant to section 92(7) of the Child Support (Registration and Collection) Act 1988, the decision under review is set aside. The time for lodging an application by the Applicant for a review of the decision made by the Child Support Agency is extended to 14 January 2010 in order to permit that review to proceed.

I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Ms G Ettinger

Signed:         ...........[sgd]............................................
  Associate

Date of Hearing  20 July 2010
Date of Decision  30 July 2010
Applicant  Self Represented
Party Joined  Self Represented

RespondentNo Appearance