DPT18 v DPU18

Case [2019] FCA 1250

FEDERAL COURT OF AUSTRALIA

DPT18 v DPU18 [2019] FCA 1250

Appeal from: Application for extension of time within which to appeal: DPT18 v DPU18 & Anor [2019] FCCA 488
File number: VID 326 of 2019
Judge: KERR  J
Date of judgment: 12 August 2019
Catchwords: PRACTICE AND PROCEDURE – application for an extension of time within which to commence an appeal from a decision of the Federal Circuit Court of Australia – where proposed appeal does not have sufficient prospects of success – application dismissed
Legislation:

Administrative Appeals Tribunal Act 1975 (Cth) ss 33, 42A(5)

Child Support (Assessment) Act 1989 (Cth) s 58A(1)

Federal Court Amendment (Court Administration and Other Measures) Rules 2019 (Cth)

Federal Court Rules 2011 (Cth) r 36.03

Cases cited:

Dobson v Dobson & Anor [2019] FCCA 488

DPT18 v DPU18 & Anor [2019] FCCA 488

Guo v Minister for Immigration and Border Protection [2018] FCAFC 34

Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; 3 FCR 344

Jackamarra v Krakouer [1998] HCA 27; 195 CLR 516

Singh v Minister for Immigration and Border Protection [2017] FCAFC 195

Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332

Date of hearing: Heard and determined on the papers
Date of last submissions: 19 July 2019
Registry: Victoria
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 35
Counsel for the Applicant: The Applicant appeared in person
Counsel for the First Respondent: The First Respondent did not appear
Solicitor for the Second Respondent: Ms K Whittemore of Sparke Helmore

ORDERS

VID 326 of 2019
BETWEEN:

DPT18

Applicant
AND:

DPU18

First Respondent

CHILD SUPPORT REGISTRAR

Second Respondent

JUDGE:

KERR  J

DATE OF ORDER:

12 AUGUST 2019

THE COURT ORDERS THAT:

1.The application for an extension of time within which to appeal be dismissed.

2.The Applicant pay the Second Respondent’s costs as agreed or assessed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

KERR J:

  1. On 3 April 2019, the Federal Circuit Court of Australia (FCCA) dismissed an appeal from two decisions of the Administrative Appeals Tribunal (Tribunal) in relation to child support payable by the First Respondent to the Applicant: DPT18 v DPU18 & Anor [2019] FCCA 488, also published as Dobson v Dobson & Anor [2019] FCCA 488. Pursuant to r 36.03 of the Federal Court Rules 2011 (Cth) (Rules) as in force at that time, the Applicant had 21 days within which to file a notice of appeal, concluding on 27 March 2019. No notice of appeal was filed on or before that date. Rule 36.03 of the Rules was amended by the Federal Court Amendment (Court Administration and Other Measures) Rules 2019 (Cth). That amendment came into effect on 2 May 2019. It extended the time within which an appeal could be commenced to 28 days after the date on…

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Details
AGLC
DPT18 v DPU18 [2019] FCA 1250
Case
[2019] FCA 1250
Decision Date

CaseChat Overview and Summary

The case of DPT18 v DPU18 involved an application for an extension of time within which to commence an appeal from a decision of the Federal Circuit Court of Australia. The applicant sought to appeal from decisions of the Administrative Appeals Tribunal that dismissed three applications for review of decisions of the Registrar relating to child support assessments. The application for an extension of time was dismissed by the Court.

The central legal issue in this case was whether the applicant was entitled to an extension of time to appeal from the Tribunal's decisions. The applicant argued that the application for an extension of time should be granted on the basis that there were reasonable prospects of success on the appeal. The respondent contended that the application should be dismissed on the basis that the appeal did not have sufficient prospects of success.

The Court evaluated the merits of the proposed appeal on a reasonably impressionistic level. The Court found that the applicant had failed to comply with directions of the Tribunal and that the Tribunal had correctly dismissed the applications on review. The Court concluded that the proposed appeal did not have sufficient prospects of success and dismissed the application for an extension of time.

The Court ordered that the application for an extension of time within which to appeal be dismissed, and that the applicant pay the respondent's costs as agreed or assessed. The entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The application for an extension of time within which to appeal be dismissed.

2. The Applicant pay the Second Respondent’s costs as agreed or assessed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

The principles relevant to an application for an extension of time within which to appeal are well settled. The Court will have regard to the extent of the delay, reasons for delay, any prejudice the respondent may suffer because of the delay, and the merits of the proposed appeal: Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; 3 FCR 344 at [348]-[349]. In respect of the last of those considerations, the Court’s duty is to evaluate the merits of the appeal on a reasonably impressionistic level: Singh v Minister for Immigration and Border Protection [2017] FCAFC 195 at [21]; Guo v Minister for Immigration and Border Protection [2018] FCAFC 34 at [27]; and Jackamarra v Krakouer [1998] HCA 27; 195 CLR 516 at [9].BACKGROUND Given the reasonably impressionistic level at which I am to evaluate the merits of the proposed appeal, I do not intend to set out the background in detail. It is sufficient by way of an introduction to these reasons to note the following uncontentious matters. The Applicant and the First Respondent are the parents of two children. The Applicant is their primary carer. The First Respondent is liable to pay child support. The Applicant commenced three separate applications in the Tribunal seeking review of decisions of the Registrar. Proceeding 2018/HC013241 took issue with a decision of the Registrar as to how the Applicant’s adjusted taxable income for the financial year ending 30 June 2015 should be assessed. Proceedings 2017/MC013167 and 2018/HC013266 sought review of two decisions of delegates of the Registrar in relation to objections raised by the Applicant regarding the Applicant’s and the First Respondent’s respective adjusted taxable incomes. With respect to proceedings 2017/MC013167 and 2018/HC013266, on 19 April 2018, the Tribunal had issued directions pursuant to s 33 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). Those directions had required the Applicant to produce certain documents relating to her financial circumstances no later than 10 May 2018. When her applications came before the Tribunal on 14 June 2018, the Tribunal dismissed proceedings 2017/MC013167 and 2018/HC013266 pursuant to s 42A(5) of the AAT Act on the basis that the Applicant had not complied with its 19 April 2018 directions. At [1]-[10] of its reasons, the Tribunal referred to the Applicant’s failure to produce a number of requested financial records. Amongst the classes of and specific documents that the Tribunal noted the Applicant had not provided (listed at [6] of the Tribunal’s reasons), were the Applicant’s personal taxation returns and notices of assessment for the financial years ending 30 June 2015 and 30 June 2016. With respect to proceeding 2018/HC013241, the Tribunal reasoned that the Applicant’s adjusted taxable income for the financial year ending on 30 June 2015 was properly to be determined by reference to the information she had provided on 3 November 2015, and for the reasons it gave, s 58A(1) of the Child Support (Assessment) Act 1989 (Cth) did not require the Applicant’s adjusted taxable income for the financial year ending June 2015 to be amended. The Tribunal affirmed the Registrar’s decision accordingly.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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