Dawson and Child Support Registrar (Child support)

[2019] AATA 1729

Dawson and Child Support Registrar (Child support) [2019] AATA 1729 (15 May 2019)

DIVISION:Social Services & Child Support Division

EXTENSION APPLICATION

NUMBER:2019/BC015982

APPLICANT:  Mr Dawson

OTHER PARTY:  Child Support Registrar

DATE DECISION MADE:                15 May 2019

APPLICATION:

An extension application made on 22 February 2019 asking the AAT to consider the application for AAT first review of a decision of the Child Support Registrar on 7 May 2018 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 lengthy delay - 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. Mr Dawson and Mrs [A] are the parents of [Child 1]. By letter dated 7 May 2018, the Child Support Agency (“CSA”) wrote to Mr Dawson to advise him that his objection to an original decision dated 13 February 2018 had been disallowed. 

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 Dawson was required to make his application within 28 days of receiving the decision letter dated 7 May 2018.

3. Mr Dawson made an application for AAT first review on 22 February 2019, well outside the 28 day period. In his written application to the Tribunal, Mr Dawson advised that he had contacted the Tribunal in September 2018 (notably, also well outside the 28 day period) and had assumed the matter would proceed. In fact, the Tribunal wrote to Mr Dawson on 28 September 2018 to advise him his application was “out of time” and he was required to make an application for an extension of time. Mr Dawson did not do so until February 2019. Amongst other things, he advised that he had been unable to pay his accountant to obtain necessary financial information to challenge the decision.

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 P/L 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 be fatal to an application for an extension of time.

2. Generally speaking, factors outside a person’s control, such as ill health or natural disasters, are viewed favourably. Here, it appears Mr Dawson made an assessment at the time not to seek further review on the basis of a lack of evidence to challenge the decision.  He effectively elected to rest on his rights and not challenge the decision before the Tribunal.

3. The delay here is particularly lengthy; in the Tribunal’s assessment, Mr Dawson does not have a reasonable explanation for not exercising his right of review in a timely way in the event he disagreed with the conclusions of the objections officer. This weighs very heavily against granting an extension of time.

Merits of the objection

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

10.The decision of the CSA appears entirely reasonable on its face. However, given the broad discretion available to decision makers in departure determinations, it cannot be said Mr Dawson has an inarguable case.

Potential prejudice to Mrs [A]

11.The Tribunal is particularly concerned about potential prejudice to Mrs [A].

12.Mrs [A] was entitled to rely on the decision in the absence of an objection by Mr Dawson within the 28 day period. The Tribunal observes the delay here is very significant; this factor weighs very heavily against granting an extension. The Tribunal observes that the child support case ended in October 2018.

Public interest considerations

13.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

14.Mr Dawson does not have a reasonable explanation for what is a very long delay. He has effectively rested on his rights. The Tribunal is particularly concerned about prejudice to Mrs [A] if the application were allowed to proceed.

15.Accordingly, the Tribunal considers the interests of justice are best served by refusing an extension of time.