Glackin and Child Support Registrar
[2004] AATA 511
•21 May 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 511
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/1880
GENERAL ADMINISTRATIVE DIVISION ) Re KEVIN MICHAEL GLACKIN Applicant
And
CHILD SUPPORT REGISTRAR
Respondent
DECISION
Tribunal Michael Sassella, Senior Member Date21 May 2004
PlaceSydney
Decision The time allowed within which Mr Glackin is to be permitted to lodge with the Child Support Registrar a valid notice of objection regarding the decision dated 29 May 2003 is not extended. [sgd] M J Sassella
Senior Member
CATCHWORDS
CHILD SUPPORT ASSESSMENT – application for change of assessment – assessment not changed – notice of objection lodged outside statutory time – reasonable explanation for delay – applicant did not indicate dissatisfaction with assessment decision during period of delay – no prejudice to respondent if extension of time granted – applicant has no prospect of success on the merits – extension of time refused
Child Support (Assessment) Act 1989 ss 98ZE, 117(2)(c)(i)
Hunter Valley Developments Pty Ltd v Cohen (1984) 7 ALD 315
Riverside Nursing Care Pty Ltd v Secretary, Department of Health and Aged Care [2003] FCA 1065
Comcare v A’Hearn (1993) 45 FCR 441
Re Mulheron and Australian Telecommunications Corporation (1991) 14 AAR 42
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Re Petrou and Australian Postal Corporation (1992) 25 ALD 407
REASONS FOR DECISION
21 May 2004 Michael Sassella, Senior Member RESULT
Mr Glackin’s application for extra time in which to lodge his notice of objection to a decision regarding his application for a changed child support assessment has been rejected.
BACKGROUND
1. Kevin Michael Glackin (“the applicant”), born 13 May 1964, applied to the Child Support Registrar (“the Registrar”, “the CSA”, “the respondent”) on 18 March 2003 to have his assessed annual rate of child support for 1999 to 2002 reduced. A delegate of the Registrar refused Mr Glackin’s application on 29 May 2003, that decision being posted to Mr Glackin on 3 June 2003. The Child Support Agency received a notice of objection regarding the decision dated 29 May 2003 on 20 October 2003. The time allowed for notifying such objections was 28 days. The respondent considered the last date for objections to be 7 July 2003. Mr Glackin was therefore over three months late in notifying the objection.
2. Mr Glackin sought an extension of time from the Registrar for lodging his objection. A delegate of the Registrar refused to extend time in a decision dated 13 November 2003. On 22 November 2003 the Administrative Appeals Tribunal (“the tribunal”) received from Mr Glackin an application for review of the decision to refuse to extend the time for notification of an objection. The tribunal has jurisdiction to consider such an application under s 98ZE of the Child Support (Assessment) Act 1989 (“the Act”).
ISSUES
3. In considering whether to grant an extension of time the Tribunal applies the principles in the Federal Court decision, Hunter Valley Developments Pty Ltd v Cohen (1984) 7 ALD 315. There are a number of criteria that arise from that decision. These are most notably:
(a)The applicant should provide an acceptable explanation of the delay. As Wilcox J says in his decision (at page 320):
“Although the section does not, in terms, place any onus of proof upon an applicant for extension an application has to be made. Special circumstances need to be shown but the court will not grant the application unless positively satisfied that it is proper to do so. … It is a pre-condition to the exercise of discretion in his favour that the applicant for extension show an ‘acceptable explanation of the delay’ and that it is ‘fair and equitable in the circumstances’ to extend time.”
(b)The applicant should have taken action other than this application to make the decision-maker aware that he contests the finality of the decision.
(c)The respondent should not be unduly prejudiced if the time is extended.
(d)The merits of the substantive application are properly to be taken into account in considering whether an extension is to be granted. Merkel J in Riverside Nursing Care Pty Ltd v Secretary, Department of Health and Aged Care [2003] FCA 1065 described the test as whether the applicant has a reasonably arguable case of error of law on the part of the decision-maker (paragraph 20). -
4. There are some additional matters to note.
· In Comcare v A’Hearn (1993) 45 FCR 441 the Federal Court pointed out that the lack of a satisfactory explanation for the delay need not be fatal to an application for an extension of time, although such an explanation should usually be given.
· In the Cohen case an additional criterion was identified, however, in the current tribunal’s view it has relevance in only some situations. This criterion is “considerations of fairness as between an applicant and other persons otherwise in a like position”. It has no impact in the present case.
· Other cases have laid down principles that are broadly consistent with those in Cohen. In Re Mulheron and Australian Telecommunications Corporation (1991) 14 AAR 42 President O’Connor said at page 48:
“The principles to be applied in considering an application for extension of time under s 29(7) … are:
(i) prima facie proceedings commenced outside the prescribed period will not be entertained. An extension of time will be granted, however, if it is proper to do so.
(ii) it is relevant whether the applicant rested on his [or her] rights or took action to make the decision maker aware that the decision was being contested;
(iii) any prejudice to the respondent that would be caused by granting the extension of time is relevant;
(iv) any wider prejudice to the general public in terms of disruption to established practices is relevant;
(v) the merits of the substantial application are relevant; and
(vi) fairness of granting an extension of time as between the applicant and other persons in like position is relevant.”
5. The wider prejudice to the general public, as it may be balanced against the interests of the individual applicant receives attention in other cases.
6. In Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 (High Court) McHugh J discussed the reasons for limitation of actions. At pages 551-552 he made the following comments:
“The enactment of time limitations has been driven by the general perception that ‘[w]here there is delay the whole quality of justice deteriorates’. …
“…it must often happen that important, perhaps decisive, evidence has disappeared without anybody now ‘knowing’ that it ever existed. …
“A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose. …
“The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. 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. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period.”
7. In Re Petrou and Australian Postal Corporation (1992) 25 ALD 407 at 411 the tribunal cited with approval a comment by Deputy President McMahon in an earlier decision where he said:
“Any delay, of course, is prejudicial. The more time that elapses between the events to be examined and the date of the hearing, the more difficult it is to present meaningful evidence … Even if this were not so, however, the mere absence of prejudice would not be enough to justify the grant of an extension.”
8. Senior Member McGirr said on the same page:
“Courts and tribunals ought as far as possible to assist litigants and the profession in the timely and efficient disposition of cases. At some point in time parties and their legal representatives ought to be able to consider that a case has been finalised.”
9. However, in the Taylor case [6] Toohey and Gummow JJ stated at page 550, “The real question is whether the delay has made the chances of a fair trial unlikely. If it has not there is no reason why the discretion should not be exercised in favour of the respondent.”
10. Kirby J at page 573 said:
“In judging prejudice, for the purpose of considering the order extending time, the matter to be weighed is the increase of prejudice after the expiry of the ordinary period of limitation. Until that time the law, as expressed in the Act, envisages that the defendant must accept any prejudice or delay without complaint.”
11. From this the issues in Mr Glackin’s case are:
(a)Has Mr Glackin an acceptable explanation for his delay?
(b)During the period of delay did Mr Glackin act to inform the Registrar that he was disputing the decision?
(c)Would the respondent be prejudiced from the grant of an extension of time?
(d)Has Mr Glackin a reasonably arguable case for having his child support assessment reduced?
FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THOSE FINDINGS
(a) Has Mr Glackin an acceptable explanation for his delay?
12. Mr Glackin’s explanation for his delay was that he was asked by the CSA to provide additional financial and business information to support his application for a change of assessment. In early 2003 he had ceased his business in Grafton and had to pack everything within a week. The packages were not labelled and were stored in two sheds in Grafton. He had some personal documents also at the house of a friend. He later moved to rental property in Port Kembla and his personal and business effects were transported there. There were some 120 packing cases of objects and papers. Much of it came from out of the business he had run. These items included pie warmers, bain mairies, cups, saucers, etc. He needed to inspect the boxes to locate his papers. This was difficult given the number of boxes and the presence of a two-year old child. He and his partner were also trying to establish her business, known as National Floor Cleaning. Mr Glackin said that the CSA decision-maker was aware of his problems as he had been communicating with him throughout May 2003.
13. In short, there was much happening in Mr Glackin’s life in 2003 and he was impeded in locating materials regarded as necessary by the CSA. He also said that he needed access to copies of earlier decisions the CSA had made on applications for changes in assessments and that he could not find these.
14. I find that Mr Glackin has an acceptable explanation for his delay in lodging his notice of objection.
(b) During the period of delay did Mr Glackin act to inform the Registrar that he was disputing the decision?
15. Mr Glackin told me that he had no discussions with the CSA between May and October 2003. However, before May 2003 he had told the CSA that he could do nothing to progress the matter until he had his boxes sorted. Mr Glackin referred to a record of a particular conversation with the CSA in which he was told that his assessment might rise and he had left the CSA in no doubt that he would not be accepting that. Mr Glackin told me that he was aware of the 28-day time limit for lodging an objection because he had been notified of the time period in the past in a similar context. He considered, however, that procedural fairness would have required the CSA to allow him longer because the CSA was aware of his problems.
16. I find that Mr Glackin did not act during the period of delay to keep the CSA informed of his continuing dissatisfaction with the decision of 29 May 2003. I do not see this as a serious issue, however, because the period of delay was relatively short when compared to many cases where an extension of time is sought.
(c) Would the respondent be prejudiced from the grant of an extension of time?
17. Ms Aleema of the CSA told me that the CSA would not be prejudiced if the time were extended. However, Ms Waite, to whom Mr Glackin pays child support, might be prejudiced in several ways. There could be a retrospective change in her administrative assessment. As part of his claim Mr Glackin is seeking a payment of over $5,000 deducted from one of Mr Glackin’s tax refunds and given to Ms Waite. Ms Waite is also disadvantaged in that, although she can be involved in consideration of Mr Glackin’s reassessment, she cannot appeal the result of that any further if it goes against her. On the other hand, it was suggested, Mr Glackin can start again seeking a changed assessment of his liability from 1999 to 2002 and Ms Waite would have a right to put arguments at the primary determination and objection stages. Ms Aleema advised that a child support payer can seek a change of assessment affecting an earlier period at any time and any decision resulting from such an application can be the subject of an objection.
18. I am not totally convinced that these arguments are pertinent to the prejudice issue. The problems raised that would affect Ms Waight are built into the child support assessment system and would still have affected her if the objection had been pursued within time. As I said earlier, the period of delay here is not great. The worst that might be said about Ms Waight’s position is that she may have thought the threat of a reassessment against her interest had passed only to find that it has not if an extension of time is granted. I find that the respondent would not be prejudiced if an extension of time is granted in this case.
(d) Has Mr Glackin a reasonably arguable case for having his child support assessment reduced?
19. As explained to me at the hearing, Mr Glackin’s child support assessment is not based solely on his taxable income. As he has more than once sought a change of assessment the CSA must apply s 117(2)(c)(i) of the Act which says that, in considering an application for a change of assessment, there must be special circumstances in the case such that administrative assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the child because of the income, earning capacity, property and financial resources of either parent or the child.
20. Mr Glackin objects to the CSA applying this provision to look beyond his taxable income position and add in the value of benefits he derived from his business. These benefits are the type involved where a person alienates personal exertion income to a company which pays for such outgoings as accommodation, food, car, etc. The problem in Mr Glackin’s case was that he wanted to argue that these benefits were miniscule in his case and that the CSA should rely on his taxable income in setting an assessment. However, Mr Glackin was unable to produce the paper work required by the CSA to show this.
21. Ms Aleema referred to Mr Glackin’s notice of objection which, in essence, asserted that the CSA had got his assessment “wrong” and that it was irrelevant for him to produce a company profit and loss account, for example. Mr Glackin has not, as is required in the context of objections, submitted evidence or argument in his notice of objection which would assist to show that the primary decision is wrong. As Ms Aleema said in her statement of facts and contentions, while Mr Glackin may be able to establish a reason for the Registrar to change his assessment if he can demonstrate that his financial position was such that he could not afford to pay the assessed rate of child support while he was involved in his business, that was not information included in his change of assessment application or in his objection.
22. Ms Aleema submitted that the objection, as lodged, had no prospect of success. I agree with Ms Aleema on this point and so find.
CONCLUSION
23. Having considered these factors I agree with the Registrar that no extension of time for lodgement of the notice of objection should be granted. This is solely because of the lack of any prospect of success. As was explained at the hearing, there is nothing to prevent Mr Glackin starting from scratch and requesting another change of assessment affecting the same period.
DECISION
24. The time allowed within which Mr Glackin is to be permitted to lodge with the Child Support Registrar a valid notice of objection regarding the decision dated 29 May 2003 is not extended.
I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Michael Sassella, Senior Member
Signed: .....................................................................................
AssociateDate of hearing 20 May 2004
Date of decision 21 May 2004
Advocate for the applicant Self-represented
Advocate for the respondent Ms Prem Aleema, Child Support Agency
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