Costlova and Child Support Registrar (Child support)

[2020] AATA 276

Costlova and Child Support Registrar (Child support) [2020] AATA 276 (8 January 2020)

DIVISION:Social Services & Child Support Division

EXTENSION APPLICATION

NUMBER:2019/MC017556

APPLICANT:  Mr Costlova

OTHER PARTY:  Child Support Registrar

DATE DECISION MADE:               08 January 2020

APPLICATION:

An extension application made on 2 October 2019 asking the AAT to consider the application for AAT first review of a decision of the Child Support Registrar on 26 June 2019 despite the period for applying for review having ended.

DECISION:

The extension application is refused.

CATCHWORDS

CHILD SUPPORT – application for extension of time - no satisfactory explanation for the delay - arguable merit - extension of time refused

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.

STATEMENT OF REASONS

1. This is an application by Mr Costlova for an extension of time to apply to the Tribunal for review of a decision of the Child Support Agency (CSA) dated 26 June 2019. The CSA decided to partly allow Mr Costlova’s objection to a “change of assessment” decision made by the CSA.

2. There is a time limit to apply for “AAT first review”: see section 90 of the Child Support (Registration and Collection) Act 1988 and paragraph 29(1)(d) of the Administrative Appeals Tribunal Act 1975. Mr Costlova was required to make his application within 28 days of receiving the decision of 26 June 2019 in the ordinary course of the post.

3. Mr Costlova made an application for AAT first review on 2 October 2019, well outside the 28-day period. In his written application to the Tribunal, Mr Costlova advised the following:

   28 days isn't enough time to respond to CSA letters, given I've already approached CSA to review again which provided a slightly better outcome but still falls well short on my earning capabilities hence I waited to get my latest 2019 Individual Tax Returns now lodged to reflect more accurately of my income position. I thought this approach being essentially self employed and having finalised 2019 income position (NOA) and updated info would allow us more info to work from than previous reviews.

4. The established cases indicate that the starting position is the prima facie rule that proceedings commenced outside a statutory period will not be entertained (Lucic v Nolan (1982) 45 ALR 411 at [416]). However, the primary concern “is to do that which will enable justice to be done between the parties” (see Martinsen v Secretary, Department of Family & Community Services [2004] FCA 297 per Spender J). Spender J quoted McHugh J in Gallo v Dawson (1990) 64 ALJR 459 as follows:

   In order to determine whether the rules [imposing time limits] will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time ...

   When the application is for an extension of time … it is always necessary to consider the prospects of the applicant succeeding in the appeal …

5. In line with Wilcox J’s survey of cases in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, the Tribunal proposes to consider the matters identified in Gallo v Dawson under the following headings:

   ·      the explanation for the delay;

   ·      the merits of the substantial application;

   ·      any prejudice to the other party, including any prejudice in defending the proceedings occasioned by the delay; and

   ·      any public interest considerations that might flow from a successful application including “the unsettling of other people … or of established practices”.

Explanation for the delay

1. The absence of a reasonable explanation for delay will ordinarily exclude the granting of an extension of time.

2. Mr Costlova was clearly advised of his right to seek further review by the Tribunal within the statutory 28-day period. It was not a requirement that he obtain further evidence to make his application. He effectively rested on his rights; he does not have a reasonable explanation for what is not an insignificant delay.

Merits of the objection

1. There is no point to granting an extension of time if an application is unlikely to succeed.

2. Departure determinations, by their very nature, involve the exercise of a broad discretion. Whilst the CSA decision appears entirely reasonable on the evidence available to it, any application, if permitted to proceed, could not be said to be devoid of merit.

Potential prejudice to the other party

1. The Tribunal is particularly concerned about potential prejudice to the other party. She has been entitled to rely, and budget, upon the original decision. This factor weighs against an extension being granted.  

Public interest considerations

1. Parliament has seen fit to set a 28-day time limit for the lodgement of objections so that parents (and the CSA) can act with certainty as to the outcome when the objection period has elapsed. The public has an interest in reviews of decisions made by the CSA being performed in a timely fashion and in a manner that ensures all applicants are treated fairly and equally. Accordingly, an extension of the time for objection is not to be automatically granted.

Conclusion

1. Mr Costlova does not have a reasonable explanation for the not insignificant delay. He rested on his rights.  The Tribunal is also concerned about the possible prejudice that may be suffered by the other party.

2. The Tribunal considers the interests of justice are best served by refusing to grant an extension of time.