Confidential and Executive Director of the Social Security Appeals Tribunal

[2008] AATA 1006

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 1006

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/2884

GENERAL ADMINSTRATIVE DIVISION		)
Re		Confidential

Applicant

And Executive Director of the Social Security Appeals Tribunal

Respondent

DECISION

Tribunal Senior Member M D Allen

Date 7 November 2008

PlaceSydney

Decision The Decision under review is AFFIRMED.  

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

M D Allen
  Senior Member  

HEADNOTES

Practice and Procedure: Extension of Time – Application to extend time to apply to Social Security Appeals Tribunal for review of decision of the Child Support Agency – Applicant unable to show any factors justifying exercise of discretion in his favour.

….

LEGISLATION

Child Support (Registration and Collection) Act 1988: s90, 91, 92

Bankruptcy Act 1966; Ss58(5A)

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CASE LAW

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Brisbane South Regional Health Authority v Taylor (1996-7) 186 CLR 541
Fagan v The Crimes Compensation Tribunal (1982) 150 CLR 666
Kelly v Coates & Others (1981) 51 FLR 69

REASONS FOR DECISION

 Senior Member M D Allen            

1.      By Application made the 30^th day of June 2008 the Applicant sought review of a decision made by a member of the Social Security Appeals Tribunal not to extend the time in which to permit the Applicant to seek review by the Social Security Appeals Tribunal of a decision by the Child Support Agency.

2. The jurisdiction of the Administrative Appeals Tribunal is peculiar in that the AAT has no jurisdiction to review the substantive decision, but subsection 92(7) of the Child Support (Registration and Collection) Act 1988 states that a person whose extension of time application has been refused by the SSAT Executive Director may apply to the AAT for review of that decision.

3.      Upon the hearing of this present application before me, there was no appearance by or on behalf of the nominated Respondent namely the Executive Director of the SSAT. No doubt the SSAT in not appearing had regard to the precept of the High Court in Reg v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 at pp 35-36. However, compare the remarks of Brennan J (as he then was) in Fagan v The Crimes Compensation Tribunal (1982) 150 CLR 666 at 681 namely:

“Where curial proceedings arise out of a matter which is contested between parties appearing before a tribunal, it is not ordinarily appropriate for the tribunal to appear to contest the curial proceedings by one of the parties before it. But where the proceedings before the tribunal are not inter parties, and where the Attorney-General can not or does not intervene to represent the public interest and neither a law officer nor a public official is heard by the court it may be desirable that the tribunal should appear by counsel to make such submissions as it thinks calculated to assist the court and, in an appropriate case to argue against the applicant’s case…”(authorities omitted)

See also Kelly v Coates & Ors (1981) 51 FLR 69 at 71.

4.      In this matter I caused my Associate to write to the New South Wales Manager of the Child Support Agency pointing out that, in my opinion, the Agency had an interest in these proceedings and stating the time, date and place of the hearing of the application. The Child Support Agency has not favoured the AAT with an acknowledgment of that correspondence.

5.      The net result is that there was no contradictor to the current application, although the beneficiary of the Child Support Agency decision could and should have been joined as a party.

6.      The non binding principles regarding an application to extend time were stated by Wilcox J in Hunter Valley Developments v Cohen (1984) 3 FCR 344 at pp 348-9 namely:

“1. Although the section does not, in terms, place any onus of proof upon an Applicant for extension an application has to be made. Special circumstances need not be shown but the Court will not grant the application unless positively satisfied that it is proper so to do. The “prescribed period” of twenty-eight days is not to be ignored. Indeed, it is the prima facie rule that proceedings commenced outside that period will not be entertained. It is a pre – condition to the exercise of discretion in his favour that the application for extension show an “acceptable explanation of the delay” and that it is “fair and equitable in the circumstances” to extend time.

2. Action taken by the Applicant, other than by making an application for review under the Act, is relavant to the consideration of the question whether an acceptable explanation for the delay hs been furnished. A distinction is to me made between the case of a person who, by non-curial means, has continued to make the decision- maker aware that he contests the finaluity of the decision (who has not “rested on his rights”) and the case where the decision-maker was allowed to believe that the matter was finally concluded. The reasons for this distinction are not only the “need for finality in disputes” but also the “fading from memory” problem…

3. Any prejudice to the Respondent including any prejudice in defending the proceedings occasioned by the delay is a material factor militating against the grant of an extension.

4. However, the mere absence of prejudice is not enough to justify the grant of an extension. In this context, public considerations often intrude. A delay which may result, if the application is successful, in the unsettling of other people or of established practices is likely to prove fatal to the application.

5. The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted.

6. Considerations of fairness as between the Applicants and other persons otherwise in a like postion are relevant to the manner of exercise of the Courts discretion.”  (authorities omitted)

7.      Principle one must be amended following the judgment of the Full Court of the Federal Court in Comcare v A’Hearn (1994) 119 ALR 85. In that case the Court stated:

“ that there is no rule that an acceptable explanation for the delay must be given as an essential precondition to the exercise of the discretion to extend time”

8.      In this matter the Applicant did give an explanation for the delay. He said that following the separation from his wife he had be “thrown” out of his home, his business put into liquidation and that proceedings with in the Family Court and with the Child Support Agency had led to the stage where he had become depressed and angry.

9.      Upon consulting his GP, the Applicant was given medication to treat his depression and was told to “ignore anything in your life that makes you angry”. As a result he often ignored correspondence from the Child Support Agency and it was likely he did not read the letter advising him of the time limits in which to appeal.

10.     I consider that the Applicant has given an explanation for the delay.

11.     Although the delay has been explained, I do not consider the explanation to advance the Applicants case. If a litigant does not read correspondence forwarded to him by an Agency then he can not be heard to complain that the Agency has proceeded to act in the belief that there is no objection to its rulings.

12.     In this matter the Child Support Agency made its decision on the 4^th June 2007. An application to review the decision was received by the Social Security Appeals Tribunal on 16 April 2008.

13. Section 90 of the Child Support (Registration and Collection) Act 1988 provides that an application for a review of a decision made by the Child Support Agency must be made to the Social Security Appeals Tribunal within the period of 28 days starting on the day that the notice of the Agencies decision is served on the person making the Application.

14.     There is some evidence that the Applicant has made the Child Support Agency aware that he contests their decisions. In the decision of the Social Security Appeals Tribunal reference is made to a decision by the Agency stating that from 1 July 2008 his Child Support Assessment would be nil. In his submission, the Applicant said that this new assessment demonstrates that the Agency has now accepted his evidence and that it should follow that the previous assessment was wrong.

15.     I do not accept the Applicants submissions in this regard. There is a difference between a prior assessment of income and an ongoing assessment. That a current assessment is nil is no evidence that a prior assessment was incorrect.

16. Principles 3 and 4 as stated above can be addressed together. Obviously no prejudice would accrue to the Child Support Agency if the assessment for the financial year 2006 – 2007 were altered. The position regarding the Applicants former spouse may be otherwise. No evidence was adduced regarding the financial status of the former wife but the materials provided to the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 disclose that arrears of Child Support remain outstanding. I infer from this that the former wife has not received any monies pursuant to the disputed assessment and therefore would not be required to disgorge any funds received. She may, however have committed herself to expenditure in anticipation of outstanding payments being received.

17.     So far as the merits of the proposed application are concerned there is insufficient material before me to make a decision. I note that was also the position of the Respondent.

18.     In evidence the Applicant stated that he had been served with a Sequestration Order under the Bankruptcy Act 1966. Ordinarily this would have influenced me towards granting the Application as circumstances have obviously changed however Ss.58(5A) of the Bankruptcy Act 1966 states:

“Nothing in this section shall be taken to prevent a creditor from enforcing any remedy against a bankrupt, or against any property of a bankrupt that is not vested in the trustee of the bankrupt, in respect of any liabilty of the bankrupt under;

(a) a maintenance agreement; or

(b) a maintenance order;

Whether entered into or made, as the case may be, before or after the commencement of this subsection.”

Maintenance order is defined pursuant to section 5 of the Bankruptcy Act 1966 to include an assessment made under the Child Support (Assessment) Act 1989.

19.     I therefore regard the Applicants bankruptcy as a neutral factor in assessing whether to extend time.

20.     Ultimately the guiding factor is as stated by Toohey and Gummow JJ in Brisbane South Regional Health Authority v Taylor (1996-7) 186 CLR 541 at 547 namley (that the discretion is one to grant an extension of time not to refuse and that an application for an extension of time must satisfy the Court that grounds exist for exercising the discretion in his or her favour.) As Wilcox J stated in Hunter Valley Developments Pty Ltd supra the prima facie rule is that proceedings commenced outside the limitation period will not be entertained. Cf McHugh J in Brisbane South supra:

“The final rationale for limitation periods is that the public interest requires disputes to be settled as quickly as possible.”

21.      In this matter that Applicant has delayed some 275 days in lodging an application for review. He has not been able to demonstrate that any factor exists to justify the exercise of the discretion to extend time in his favour therefore the Decision under review is AFFIRMED.

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen

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

Date/s of Hearing   31 October 2008
Date of Decision   7 November 2008        
Solicitor for the Applicant           Appeared on own behalf         
Solicitor for the Respondent      No Appearance