Haywood and Child Support Registrar

[2004] AATA 325

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 325

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/132

GENERAL ADMINISTRATIVE  DIVISION		)
Re		JEFFERY HAYWOOD

Applicant

And CHILD SUPPORT REGISTRAR

Respondent

DECISION

Tribunal Ms G Ettinger, Senior Member

Date9 March 2004

PlaceSydney

Decision For the reasons given orally at the conclusion of the hearing, the Tribunal refuses the application of Mr Haywood for extension of time to appeal the decision of the Respondent.

Ms G Ettinger
  Senior Member

CATCHWORDS

Extension of Time  – child support -  claim by Applicant with regard to assessment in relation to child support – extension to time to review decision refused.

Administrative Appeals Tribunal Act 1975 s 29(7)

REASONS FOR DECISION

9 March 2004   Ms G Ettinger, Senior Member        

1. At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. The Respondent pursuant to sub‑section 43(2A) of the Administrative Appeals Tribunal Act 1975 has requested the Tribunal to furnish to the Applicant a statement in writing of the reasons of the Tribunal for its decision.

2.      The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. 

3.        The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reasons for the Tribunal's decision.

I certify that this and the following pages are a true copy of the decision and reasons for decision of:

Senior Member G Ettinger

Signed:         

Associate

Date of Hearing  9 March 2004

Date of Decision  9 March 2004

Representative for Applicant      Self-represented

Solicitor for Respondent              Ms J Cuthbert

MS G ETTINGER, Senior Member
JEFFERY HAYWOOD  v CHILD SUPPORT REGISTRAR
Sydney 9 March 2004

FOLLOWING THE HEARING, AND COMMENCEMENT OF DECISION MAKING

MS ETTINGER:   Excellent.  Okay, is there anything else, either party?

MS CUTHBERT:   No thank you.

MS ETTINGER:   Mr Haywood?

MR HAYWOOD:   No, that is all.

MS ETTINGER:   Okay, I ask because once I make the decision it is final
and I can't discuss it any further, okay?  So thank you both for
attending.  I know this is a difficult area, it is quite emotional for you, Mr
Haywood, and you have explained some of your difficult circumstances and
the fact that you find it uncomfortable and difficult to go to Court.  Well,
most courts and tribunals are pretty friendly to people who come without
solicitors, because many people are nowadays unrepresented, as you are
today before this Tribunal.

So I am hoping that it has not been too uncomfortable, although it is never
really a pleasant experience, and you would rather be doing something else.

So thank you both for attending.  Ms Cuthbert, of course, it is part of your
work, and you do it very well.  So thank you both.  What I need to do is to
take into account the principles that are in this case of Hunter Valley (as explained during the hearing), and as I have said before, have been applied in many other matters.

issue before the tribunal

So, to put it in context, the decision to be made by this Tribunal is whether the Tribunal will exercise the discretion available pursuant to section 29(7) of the Administrative Appeals Tribunal Act 1975 to extend time as requested by the Applicant for him to have the decision of the Respondent made in regard to child support, reviewed.

At this hearing the Applicant was self represented and the Respondent, the Child Support Registrar, was represented by Ms J Cuthbert. 

legislative framework

The relevant legislation is the Administrative Appeals Tribunal Act 1975, in particular section 29(7).

decision

In looking at whether to exercise the discretion to allow the extension of time, the first thing that we do is look at what the prescribed period is to make an application, an appeal.  That prescribed period is 28 days, and there is no dispute that in fact, Mr Haywood, you didn't make an application within that time, with regard to the decision on 26 July 1999.  What you are saying is that the letter telling you about your appeal rights was not appended, and Ms Cuthbert says, well on file she has a copy of that letter both to you, and to your wife.  It is very likely that it was sent because that is the normal procedure in the agencies - they are required to tell people about their appeal rights.

However, even if it didn't accompany the decision, you are telling us that you rang not too long afterwards, after you received it in August (1999), and that might have been around mid-August.  If the legislation had just changed about that time, you may or may not have been told the correct information.  You may not remember whether you were told you could apply to the AAT or whether it was to court, as you say.  You then left it for quite a while, and finally made an application.  So the application we are looking at today is your appeal regarding a refusal of extension of time dated 1 November 2000, which refused you an extension of time to appeal the decision of 26 July 1999.

What I need to do is look at is whether you rested on your rights.  You are saying you would have objected if you had been aware, but you weren't.  That decision of 1 November 2000 actually tells you that you can apply to the AAT.  You say that you rang the AAT, that you rang the Tribunal, and that you didn't appeal - you chose not to make the application because you could not pay the fee.  Now, our people whom you ring, know exactly that fees can be waived, and that they often are, and in fact they were waived in your case. That means that you didn't have to pay a fee, and that the taxpayer funds that application fee. That happens quite often, particularly with people who find it difficult to pay the fee.

So as far as I am concerned, the AAT will have advised you that that fee could be waived, if in fact you are financially disadvantaged, or you are not earning at all.  You didn't take advantage of that, and you didn't apply until February 2004, 3-1/2 years later.  We are looking at your application now to extend time to review a decision of 26 July 1999.

So as far as I am concerned, the explanation for the delay is not acceptable.

Looking then at the merits of the matter; I don't have very much information with regard to the merits of the matter.  Ms Cuthbert has pointed out that your main objections seem to be as regards the manner, and ability, and alleged bias of Mr Turton in making a decision.  And her submission is that it would be unlikely that the objection would be upheld.  She also mentioned your ex-wife's situation. I don't have any information about that.  However when I look at the merits of the application, I suppose there would always have to be some merit, but I don't think I would be great in this case.

As far as detriment to you goes, or to your ex-wife - once again I can't comment on the situation of your ex-wife except that detriment can be suffered because of the uncertainty if matters that are years old are brought forward again.  As far as you are concerned, there is a current objection being processed, and you can apply in connection with that as far as your earlier objections go as well.  So that can be raised in connection with your current objection.  So I don't think there is any detriment to you in not re-opening, and therefore not allowing the extension of time.  I don't believe there is any prejudice on your side if we don't re-open, so I'm not inclined to.

Considerations of fairness as between you and other people who are in this position; I think that everybody has to be treated equally, and unless there are compelling reasons, I would not be allowing you an extension of time that is so long out of date.

So on the basis of all those points and all the evidence you have given, all the evidence in front of me, (and I have none as far as your ex-wife goes apart from what Ms Cuthbert has said), your application for the extension of time to appeal the decision is not granted. 

So that is all I can say for today and thank you both very much for your time.

Ms G Ettinger
Senior Member