FVMZ and Child Support Registrar (Child support second review)

[2018] AATA 4200

FVMZ and Child Support Registrar (Child support second review) [2018] AATA 4200 (23 October 2018)

Division:GENERAL DIVISION

File Number(s):      2017/3407

Re:FVMZ

APPLICANT

AndChild Support Registrar

RESPONDENT

AndNZNP

OTHER PARTY

DECISION

Tribunal:A G Melick AO SC, Deputy President

Date:23 October 2018

Date of written reasons:        9 November 2018

Place:Hobart

The decision under review is affirmed.

...........................[sgd]..............................

A G Melick AO SC, Deputy President

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.

CATCHWORDS

CHILD SUPPORT – substantive decision a refusal to grant an extension of time – principles relevant to the grant of an extension of time – Tribunal not satisfied that reasonable in all the circumstances to grant extension of time – decision under review affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

CASES

Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541
Furgtniet v Secretary, Department of Social Services [2017] FCA 1227
Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment [1984] FCA 176; (1984) 3 FCR 344
Re Johnson and Commonwealth of Australia [1990] AATA 1
Taylor and Comcare [2018] AATA 972

WRITTEN REASONS FOR ORAL DECISION

A G Melick AO SC, Deputy President

9 November 2018

INTRODUCTION AND BACKGROUND

1. The Applicant sought review of the decision of the Social Services and Child Support Division of the Tribunal (the SSCS Division) dated 5 May 2017 refusing a request for an extension of time in which to lodge an application for review of a decision made by the Child Support Registrar on 21 July 2014.

2. The Applicant has been in receipt of child support for many years. The Respondent partly allowed an objection by the Other Party to a change of assessment decision made on 14 March 2014 and advised the Applicant accordingly on 21 July 2014.

3. The Applicant lodged an application for review of that decision with the SSCS Division on 10 March 2017, together with a request for extension of time in which to lodge that appeal as it was lodged almost 32 months out of time. On 5 May 2017, the SSCS Division refused the application for an extension of time. The Applicant applied for review of that decision to this division of the Tribunal on 7 June 2017.

4. A hearing was held on 23 October 2018 and all parties attended in person. At the conclusion of that hearing the decision and the reasons for it were given orally. The Applicant requested written reasons for the oral decision pursuant to s 43(2A) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) and those reasons are set out below.

5. I note that this is a de novo review and, pursuant to s 43 of the AAT Act, I exercise the powers and discretions conferred by social security law. This means that I am not concerned about errors in the original decision, it is a matter for me to deal with this matter on the materials before me.

   RELEVANT LEGAL PRINCIPLES

6. There is a voluminous amount of law set out in relation to applications for extensions of time. Most legislative schemes that provide for a review of administrative decisions impose time limits or requirements on the lodging of such applications. In Taylor and Comcare [2018] AATA 972, Senior Member Puplick summarised the rationale for such limitations, in part by reference to the judgment of McHugh J in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541. His Honour gave four reasons why such limitations are an important part of the legal process (at 552-553):

   First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even “cruel”, to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them.

   The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible.

7. Justice McHugh also noted (at 551):

   An applicant for an extension of time who satisfies those conditions is entitled to ask the court to exercise its discretion in his or her favour. But the applicant still bears the onus of showing that the justice of the case requires the exercise of discretion in his or her favour.

8. In Hunter Valley Developments v Minister for Home Affairs and Environment [1984] FCA 176; (1984) 3 FCR 344 (Hunter Valley) at 348-349 the Court set out considerations relevant to extending the time in which to lodge an appeal. Special circumstances need not be shown but a court will not grant an extension of time unless positively satisfied that it is proper to do. Prescribed time periods are not to be ignored and the prima facie rule is that applications made outside that period will not be entertained.

9. It is generally accepted that the checklist set out in Hunter Valley should be taken as a guide in determining Tribunal matters. I also note that the checklist is not merely a ‘tick and flick’ exercise and that the consideration should be appropriately balanced. Many of the considerations on this list repeat general principles and this reinforces the consistency of courts over many years in upholding these principles. The list provides as follows:

   (i)an applicant must show an acceptable explanation for the delay and that it is fair and reasonable in the circumstances to extend time;

   (ii)a distinction should be made between an applicant who has ‘rested on his rights’ and allowed the decision-maker to believe the matter was finally concluded, and one who has continued to make the decision-maker aware that he or she contests the finality of the decision;

   (iii)any prejudice to the respondent caused by the delay;

   (iv)whether the respondent or the general public would suffer any prejudice as a result of the extension;

   (v)the merits of the substantial application; and

   (vi)‘considerations of fairness as between the applicant and other persons’ in a similar position.

   I also note that on many occasions the Tribunal has given consideration to the length of the delay in question, as well as the applicant’s knowledge of their appeal rights.

10. In Re Johnson and Commonwealth of Australia [1990] AATA 1, the Tribunal held that prima facie applications outside the prescribed period of time should not be entertained but that an extension of time will be granted where it is proper to do so (at [17]). The Tribunal went on to set out relevant factors to be considered in applications for an extension of time, including:

    ·whether or not the applicant rested on his or her rights or took action to make the decision-maker aware the decision was being contested;

    ·any prejudice to the respondent that would be caused by granting the extension of time;

    ·any wider prejudice to the general public in terms of disruption to established practices;

    ·the merits of the substantive application; and

    ·the fairness in granting the extension of time as between the applicant and other persons in a like position.

    EVIDENCE AND FINDINGS

11. Having dealt with the legal principles, I now turn to the evidence. The Applicant contends that she was unable to properly consider or deal with her rights after receiving the decision because of significant mental health issues, which were not resolved until sometime in 2016. I accept that the Applicant suffered these mental health issues during much of the period affected by the delay but note that she was still able to deal with the Child Support Agency on a regular basis during the period. I note the consistency in reports on the Applicant’s mental health issues and the agreement that these issues were significant. Beyond this, I consider that it is not necessary for me to delve into the reasons for these issues.

12. It is also relevant that the Applicant was informed of her rights of review, and the prescribed time limits for review, at the relevant time. The Applicant contended that dealing with the Child Support Agency was not the same as having a matter before the Tribunal but I am not satisfied that this was a factor in 2014 as no evidence was given about any knowledge she held about Tribunal procedures.

13. Overall, I am not satisfied that a reasonable excuse has been proffered because the Applicant told the SSCS Division that she did not realise to include this decision which applied for other change of assessment decisions. This all comes back to the question of her knowledge at the relevant time and her capacity to deal with the issues.

14. I find that because the Applicant was able to deal with the other issues with the Child Support Agency there was no reason why she could not have at least made some attempt to indicate to the Agency she was dissatisfied with the 2014 decision, even if she did not lodge a formal appeal at that time. The Applicant was actively appealing other decisions at the relevant time and her mental health did not prevent her for so doing.

15. In the event I am wrong about that finding, I have also considered whether the grant of an extension of time would prejudice the Respondent. In this case there would significant prejudice to the Respondent: 32 months is a very long time and the prejudice is caused in several ways. First, there is the principle of finality in administrative decision-making process and the Respondent was entitled to believe the matter was finalised.

16. The delay also prejudiced the ability of parties to put evidence to the Tribunal. The Federal Court noted this particular factor in Furgtniet v Secretary, Department of Social Services [2017] FCA 1227 (Furgtniet) and said that, in that case, the relevant prejudice to the respondent and to the public was the inherent impact of the passage of time ([18]).

17. In Furgtniet, this was not a prejudice that required evidence beyond the inference flowing from the passage of time and the common knowledge that memory may fade, and making inquiries to test facts may become increasingly difficult. I also note that the effluxion of time makes it very difficult for even the Applicant to properly recall events. I find the Applicant to be a truthful witness, recounting events as she perceived them, but when a matter has been festering for nearly three years there is always a probability that memory will be affected by subjective perceptions.

18. In Furgtniet the delay was approximately 12 months whereas here the delay is considerably longer. There is also the community expectation that the rules regarding delays in the making of an application are rigidly enforced. To make an exception without the benefit of convincing reasons would overall prejudice the systems requiring administrative actions to be appealed within the appropriate time.

    DECISION

19. In this particular case, as far as prejudice is concerned, it is not just the Respondent who would be affected and there is another party would be affected by this decision. The merits of the substantive application are difficult to assess on the evidence before me, although I note that the substantive decision of the Child Support Registrar is very thorough and appears to have merit. I acknowledge that it is not impossible that the Applicant would have been successful should I have granted the extension of time (and so set aside the decision under review) however, at the end of the day, I consider the prejudice caused by the delay to outweigh any consideration about the relevant merits of the case. Accordingly, I affirm the decision under review.

I certify that the preceding 19 (nineteen) paragraphs are a true copy of the reasons for the decision herein of A G Melick AO SC, Deputy President

................................[sgd]................................

Associate

Dated: 9 November 2018

Date(s) of hearing:	23 October 2018
Applicant:	In person
Counsel for the Respondent:	Mr B Sparkes, FOI and Litigation Branch, Department of Human Services
Counsel for the Other Party:	Mr A Walker
Solicitors for the Other Party:	Butler, McIntyre & Butler