Draper and Child Support Registrar (Child support)

[2019] AATA 4885

Draper and Child Support Registrar (Child support) [2019] AATA 4885 (25 September 2019)

DIVISION:Social Services & Child Support Division

EXTENSION APPLICATION

NUMBER:2019/SC017091

APPLICANT:  Mr Draper

OTHER PARTY:  Child Support Registrar

DATE DECISION MADE:               25 September 2019

APPLICATION:

An extension application made on 6 August 2019 asking the AAT to consider the application for AAT first review of a decision of the Child Support Registrar on 21 January 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 – little 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 Draper for an extension of time to apply to the Tribunal against a decision of the Child Support Agency (CSA) refusing to grant him an extension of time to object to an earlier decision concerning the particulars of the child support assessment (namely, to accept a request from [Country 1] Child Support to include the particulars of a [Country 1] maintenance liability in the Child Support Register pursuant to s25A of the Child Support (Registration and Collection) Act 1988.

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 Draper was required to make his application within 28 days of receiving the decision letter of 21 January 2019, which he received on 23 January 2019.

3. Mr Draper made an application for AAT first review on 6 August 2019, well outside the 28-day period. 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 …

4. 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. Mr Draper has not raised any particular reason for the delay, let alone a compelling explanation; he simply argues that the substantive decision is wrong.

3. Mr Draper was clearly advised of his objection rights. Mr Draper has effectively rested on his rights; he does not have a reasonable explanation for the delay.

Merits of the objection

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

2. The decision before the Tribunal is limited to deciding whether an extension of time to object can be granted. In his application to the CSA, he similarly raised no compelling explanation for not objecting within the 28 day period. Regardless, it appears to the Tribunal the original decision to register the liability is correct.

3. Mr Draper’s application to the Tribunal for an extension of time to object appears to have no prospects for success. This factor also weighs very heavily against granting an extension.

Potential prejudice to the other party

11.The Tribunal is concerned about potential prejudice to the other party. She was entitled to rely on the decision in the absence of an objection within the 28-day period. This factor weighs against granting an extension.

Public interest considerations

12.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

13.Mr Draper does not have a reasonable explanation for the delay. Regardless, his application would not be likely to succeed.

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