CONFIDENTIAL and EXECUTIVE DIRECTOR, SOCIAL SECURITY APPEALS TRIBUNAL
[2009] AATA 172
•17 March 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 172
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/5098
GENERAL ADMINISTRATIVE DIVISION ) Re CONFIDENTIAL Applicant
And
EXECUTIVE DIRECTOR, SOCIAL SECURITY APPEALS TRIBUNAL
Respondent
DECISION
Tribunal
The Hon R J Groom (Deputy President)
Date17 March 2009
PlaceHobart
Decision
Pursuant to Section 92(7) of the Child Support (Registration and Collection) Act 1988 the Tribunal directs that:
1. The decision under review is set aside.
2. The time for lodging an application by the applicant for a review of the decision made by the Child Support Agency and notified to the applicant on 16 June 2007 be extended to permit that review to proceed.
(Sgd) The Hon R J Groom
Deputy PresidentIt is noted that publication of this decision is approved by the Administrative Appeals Tribunal pursuant to s 110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth). CATCHWORDS
Child Support – application to extend time to apply to Social Security Appeals Tribunal – SSAT refused extension – whether factors justify the exercise of the discretion to extend time – decision set aside – time extended
Child Support (Registration and Collection) Act 1988 ss 90(1), 92(7)
re Bell and the Australian Telecommunications Commission [1983] AATA 150
Hunter Valley Developments v Cohen (1984) 3 FCR 344 at pp 348-9
Comcare v A’Hearn (1994) 119 ALR 85 at p 88
Johnson and Commonwealth Commission for Safety Rehabilitation and Compensation of Commonwealth Employees AATA no A88 of 1987
Lucic v Nolan (1982) 44 ALR 411
REASONS FOR DECISION
17 March 2009 The Hon R J Groom (Deputy President) 1. The applicant has applied under section 92 (7) of the Child Support (Registration and Collection) Act 1988 (‘the Act”) for a review of a decision of the Social Security Appeals Tribunal (“SSAT”) dated 19 September 2008.
2. In that decision the SSAT refused to extend time to permit the applicant to seek a review of a reconsideration decision of the Child Support Agency (“CSA”) notified to the applicant on 16 June 2007.
3. That decision of the CSA was a decision confirming the applicant’s child support income for the period 1 September 2006 to 30 November 2007 at $76,604.00. The applicant contends that his income for that period was substantially lower than that figure.
4. An application to the SSAT to review such a decision is to be made within 28 days (see section 90(1) of the Act). The application to the SSAT was not made by the applicant until 3 July 2008. This was more than a year after the decision had been notified to the applicant.
5. The hearing of this application was held in Hobart on 5 March 2009. Mr M Bowman appeared for the applicant. The applicant gave oral evidence. Several documentary exhibits were tendered in evidence including the “T-documents” lodged pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975.
6. There was no appearance at the hearing on behalf of the SSAT. This apparently accords with its general practice. The SSAT limits its participation in proceedings of this kind to the preparation of the “T-documents”. This Tribunal’s Hobart Registry wrote to the child support beneficiary inviting her to apply to be joined as a party to these proceedings. No application was received. It is also the policy of the CSA not to become involved in extension of time applications of this kind unless there are issues of special significance involved. As a result there was no-one present at the hearing to contradict the evidence and submissions advanced on behalf of the applicant.
7. Section 92(7) of the Act does not include any criteria to be applied in exercising the discretion granted to the Tribunal to extend time.
8. In deciding whether to exercise the discretion to extend time it is necessary to consider the question of fairness as between the parties and others. Of particular concern is whether the applicant has ‘rested on his rights’, is there likely to be any prejudice caused by the delay and is there merit in the substantive application.
9. More specific guidance for deciding extension of time applications was provided by Wilcox J in Hunter Valley Developments v Cohen (1984) 3 FCR 344 at pp 348-9 when his honour said as follows:
“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 relevant to the consideration of the question whether an acceptable explanation for the delay has 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 finality 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 position are relevant to the manner of exercise of the Courts discretion.”
Wilcox J said that he had distilled those principles -
“… to guide, not in any exhaustive manner, the exercise of the court’s discretion”
10. The Full Court of the Federal Court in Comcare v A’Hearn (1994) 119 ALR 85 at p 88 has qualified an element of the first principle enunciated by Wilcox J when it stated:
“…we note that the Tribunal used language that might be taken to suggest that it is a precondition for success in such an application that an acceptable explanation for the delay must be given. Although it is expected that such an explanation would normally be given, as a relevant matter to be considered, there is no rule that such an explanation is an essential precondition”
THE DELAY AND WHETHER THE APPLICANT “RESTED ON HIS RIGHTS”
11. As stated in A’Hearn a satisfactory explanation for the delay is not an essential prerequisite. It is, however, clearly a relevant matter particularly when considering whether the applicant has “rested on his rights” during the period in question.
12. The delay involved is over one year. That delay is lengthy but longer periods of delay have been permitted (see for example re Bell, and also Johnson and Commonwealth Commission for Safety Rehabilitation and Compensation of Commonwealth Employees AATA no A88 of 1987)
13. The applicant states that his wife contacted the CSA on his behalf, on 23 March 2007 and advised that he could not attend a conference at which the matter was considered. He complains that he was unable to put his side of the story to the CSA. It is said on behalf of the CSA that “I am not stating contact did not take place only that no record of contact can be found (see T-documents page 65)”. The Tribunal accepts the applicant’s evidence that this conference proceeded despite the CSA being advised that he could not attend at that time.
14. The applicant did write to the CSA soon after the decision was made expressing his concern about it. The applicant’s letter was acknowledged in correspondence from the CSA dated 12 July 2007.
15. In its decision of 19 September 2008 the SSAT at paragraph 25 lists five occasions when it believes the applicant was told that he should seek a review of the decision by the SSAT.
16. In response to that list the applicant said in his witness statement, which he affirmed as being true and correct in his oral evidence on 5 March 2009, that:
·“I recall receiving the letter of 16 June 2007 and reading the first paragraph that my objection had been disallowed. I recall throwing the letter on the table due to annoyance, feeling frustrated as to what to do or write in response and failing to read the accompanying brochure.
·I, in error, wrote to the CSA objecting to that objection decision and recall receiving a letter of 12 July 2007. I only recall that once again my desire to have the case reheard failed. I acknowledge that I did not read fully what I had received.
·I recall a conversation on or about 18 February 2008. I recall asking the CSA officer if the SSAT was apart of your (ie. CSA) organisation. I was advised that “It’s not but it is.” I then said “What’s the point of going through them if they were going to give the same response.” I felt this was simply another place to “shove me.”
I was not advised that the SSAT was intended to be simple and inexpensive and that applications could be lodged orally.
·I do not dispute that this conversation on 18 February 2008 occurred but can’t recall the specific details other than feeling it “went straight over my head” and I became angry. I received calls whilst at work and this call may have been when I was at the … working on a boat making it difficult to concentrate on issues of the CSA that I found complex.
·I agree that I had a conversation on or about 3 July 2008 that prompted me to lodge the application to the SSAT.
6.I discussed with my wife and the office of my local politician Dick Adams whether the ombudsman could help me. Thus over the next twelve months and up to the time I spoke to Kathleen Bradfield of CSA I did not properly comprehend that the SSAT was the appropriate place to deal with an appeal from a CSA decision.
7.During that year both my grandfather and grandmother, who had virtually looked after me most of my life, died. I was very busy at work of fibreglass manufacturing and that business was involved in a lot of litigation over a campervan, resulting in a great deal of stress. As a result of legal costs incurred in that dispute I did not believe I could afford a lawyer in relation to my child support dispute.
8.Having become aware of the SSAT I tried to gain representation to lodge an appeal and have experienced delays in regard to that. In summary, I have always believed that I had the basis to appeal against the last CSA assessment. I am not skilled in relation to the administration of government agencies and tribunals and have not been able to determine what options I had over that period of time. I did not seek to delay collection of any debt but rather grappled with the system that prevailed. As stated my own personal issues compounded my sense of frustration.”
17. The applicant operates a one man business. It is clear from his evidence that he is a practical man and is not good at dealing with paperwork and with government agencies. He said he found the issues involved to be “complex”.
18. The Tribunal is satisfied that the applicant at no stage accepted as correct the CSA assessment that his child support income at the time was $76,604.00. The applicant has continued to contest that decision from time to time during much of the period from 16 June 2007 to 3 July 2008 when he applied to the SSAT for a review.
19. In the Tribunal’s view the applicant has not rested on his rights but has shown by his conduct that he has felt aggrieved since the original decision was made and has desired to have a further opportunity to put his case.
20. The Tribunal accepts the applicant’s evidence that he found it very difficult to understand how he should pursue his rights to have the decision reviewed. This lack of understanding was exacerbated by the personal and financial difficulties he was experiencing during the period of time in question.
MERITS OF THE APPLICATION
21. The Tribunal views this as a particularly significant consideration. If there is no merit in the substantive application then it will be a waste of everyone’s time to permit the matter to proceed further. At the same time if it has merit and no-one is significantly prejudiced by allowing the matter to proceed it may be an injustice not to permit the applicant to have the opportunity to put his case.
22. It is, of course, not necessary for this Tribunal to finally determine the merits of the case. It should consider only whether the claim has sufficient merit to justify an extension of time.
23. There may be cases where there are such obvious weaknesses in the applicant’s cases to justify a refusal to grant an extension (for example see Lucic v Nolan (1982) 44 ALR 411).
24. The applicant said in his witness statement:
“9. I have consistently maintained from 1 May 2007 when I objected to the CSA assessment that the child support income of $76,604.00 did not reflect my actual income and was in error.
10. My taxable income for 2004/2005 arose because I received a payment in advance for the building of two boats that was to be used to pay five subcontractors for the labour component of the cost of building of the boats. The money was in fact used for paying those subcontractors.
11. My taxable income in the years from 2001/2002 is as follows:
2001/2002 $11,567
2002/2003 $39,387
2003/2004 $15,657
2004/2005 $73,658
2006/2007 $ 6,405
2007/2008 $ 8,150 …”
The Tribunal accepts that evidence as correct.
25. The Tribunal notes that the SSAT said at paragraph 32 of its decision:
“in the Tribunal’s view there is merit in ….’s substantive application”
It is obviously significant that the very Tribunal to which the applicant has applied for a review has itself found that there is indeed merit in his substantive application.
26. This Tribunal is of the view that it is likely that the applicant’s substantive application has merit.
PREJUDICE TO ANY OTHER PARTY
27. As previously mentioned no other party with a potential interest in these proceedings has chosen to appear to contest the evidence and submissions advanced by or on behalf of the applicant. This is not ideal as it is always helpful for the Tribunal to hear from others who may have an interest in the proceeding.
28. It would appear that there will be no evidentiary prejudice to any other party. It has been indicated that all of the relevant records and other evidence remain available. It also appears from the evidence that the applicant has not yet paid the additional maintenance which should be payable on the child support income assessment of $76,604.00. The beneficiary of the child support would therefore not be required to repay any maintenance already paid should the $76,604.00 figure eventually be found to be incorrect. One expects however that there would be some impact on the child support payments if the assessment is amended. These proceedings would be rather pointless if that were not the case.
29. There is no evidence before the Tribunal of prejudice to other individuals or indeed to the general public interest sufficient in all the circumstances to influence a decision as to whether time should be extended.
CONCLUSION
30. After considering all of the particular facts of this application the Tribunal concludes that it is positively satisfied that it should exercise the discretion granted to it by Section 92(7) of the Act and extend the time for applying to the SSAT for a review of the relevant decision.
DECISION
31. Pursuant to Section 92(7) of the Child Support (Registration and Collection) Act 1988 the Tribunal directs that:
1. The decision under review is set aside.
2. The time for lodging an application by the applicant for a review of the decision made by the Child Support Agency and notified to the applicant on 16 June 2007 be extended to permit that review to proceed.
I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R J Groom (Deputy President)
Signed: H Healy (Administrative Assistant)
Date/s of Hearing 5 March 2009
Date of Decision 17 March 2009Solicitor for the Applicant Mr M Bowman, Hobart Community Legal Service
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