Heaton and Ellsworth (Child support)

[2023] AATA 4664

Heaton and Ellsworth (Child support) [2023] AATA 4664 (5 October 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/MC025406

APPLICANT:  Mr Heaton

OTHER PARTIES:  Child Support Registrar

Ms Ellsworth

CATCHWORDS
CHILD SUPPORT – reinstatement application – meaning of ‘error’ beyond procedural error - meaning of ‘reasonable timeframe’ - whether applicant denied procedural fairness –application for reinstatement 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.

DECISION ON APPLICATION FOR REINSTATEMENT:

1. On 7 July 2023, the application for review was dismissed[1] as Mr Heaton failed to comply with a direction by the Tribunal in relation to the application.  Written reasons were provided to Mr Heaton on 13 July 2023.

   [1] Subsection 45A(5) of the Administrative Appeals Tribunal Act 1975

2. Mr Heaton, via his new legal representative now seeks reinstatement of the application on the following grounds:

   ·The Tribunal made an error;

   ·The Tribunal misconstrued section 42A(5)(b) of the Administrative Appeals Tribunal Act (1975);

   ·There has been a denial of procedural fairness especially as the decision under review extends departure of the child support assessment until 2027.

3. The second party opposes the reinstatement.

4. The only discretion to reinstate in this matter is found in subsection 42A(10) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) and can only be exercised if “it appears to the Tribunal that an application has been dismissed in error”. What constitutes a dismissal in error has been the subject of much judicial discussion and debate discussed below.

5. The Tribunal will deal with each of the grounds raised in paragraph 2 above.

Has the Tribunal made an error in dismissing Mr Heaton’s application?

1. Submissions on behalf of the applicant referred to the definition of ‘error’ as cited in the matter of Goldie v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 367 (Goldie) suggesting that the action taken to dismiss Mr Heaton’s matter falls within the scope of the definition expressed.

2. At first instance this case can be differentiated on the facts.  Goldie concerned a case of nonappearance. This matter concerns a case where the applicant deliberately failed to comply with timetabled directions in a case management strategy that was not only communicated at a telephone directions hearing, attended by himself and his lawyers, but also in the direction itself.   However, given the submissions and the serious allegation that the Tribunal has fallen into error, the circumstances of Goldie were revisited.

3. As the Tribunal understands it, the circumstances in Goldie were that the applicant instructed counsel to appear to apply on an adjournment application. The Tribunal refused the adjournment application, and then dismissed the review application for non-appearance (under AAT Act s 42A(2)), when neither the applicant nor his counsel was present at the immediately ensuing hearing. The applicant subsequently applied to have the substantive application dismissed, but made that application after the (then inflexible) 28-day time limit provided for in AAT Act s 42A(8). The Tribunal refused that application. The matter was then the subject of an application for an extension of time to appeal to the Federal Court. The argument about extension of time necessarily required consideration of the apparent merits of the proposed appeal: see [2002] FCAFC 367 at [14].

4. One of the issues in the extension of time application was therefore whether the “error” discretion conferred by AAT Act s 42A(10) was capable of applying to a dismissal (under AAT Act s 42A(2)) on the ground of non-appearance. A second issue, related to the first, was whether the concept of “error” was limited to “administrative error” and, in particular, error on the part of the Tribunal. A third issue was whether either the adjournment refusal, or the subsequent dismissal order, were affected by relevant error.

5. All three members of the Full Court of the Federal Court disapproved of the obiter remarks in the earlier decision in Brehoi[2] and held that (i) the concept of “error” was not confined to “administrative error” by the Tribunal and, (ii) the “error” criterion in AAT Act s 42A(10) could be applied even where the proceedings had been dismissed, under AAT Act s 42A(2), for non-appearance. In Goldie Wilcox and Downes JJ constituted the majority that dismissed the extension of time application. On the question of the proper interpretation of the “error” criterion in AAT Act s 42A(10) their Honours said that the expression “dismissed in error” in AAT Act s 42A(10) should be interpreted widely, and as extending beyond mere administrative error. Their Honours said (at [27]–[29]):

   [27] The s 42A(10) issue is more problematic. The difficulty with … the decision of Deputy President Hotop, is that {it} requires the Court to read into the subsection a word ("administrative") which is not there. The stated condition for the exercise of the subs (10) power is that "it appears to the Tribunal that an application has been dismissed in error". The subsection does not impose any qualification or limitation on the word "error".
   [28] The only limitations that we can see in s42A(10) are:

   (i)     that the Tribunal has dismissed the application; and

   (ii)    that the act of dismissal was attended with error.

   [29] We do not think it is necessary, in order to enliven the Tribunal’s power under
   

   [2] Brehoi v Minister for Immigration and Multicultural Affairs [1999] FCA 772; (1999) 58 ALD 385

   s 42A(10), that the Tribunal, or a member or employee of the Tribunal, should have been at fault in relation to the dismissal. The fault may have lain elsewhere, provided it induced the error. For example, because of a mistake as to his or her instructions, a solicitor or other representative of a party might have wrongly consented to a dismissal order or filed a notice of discontinuance. No fault would attach to the Tribunal; but, if the solicitor's mistake induced the dismissal of the action, it could properly be said the application had been "dismissed in error".

1. However, their Honours went on to hold that there was no relevant “error”. This was because (i) there was no application to appeal from the refusal of the adjournment decision and, (ii) because there had been no appearance by the applicant after the refusal of the adjournment application, there was no factual basis on which, given the limited material before it, the Tribunal dealing with the reinstatement application could have concluded that the proceedings had been dismissed in error. Indeed the majority judges tended to the view that the applicant’s non-appearance meant that dismissal was the preferable course for the Tribunal to have taken: see [2002] FCAFC 367 at [23] and [38]–[42].

2. The third member of the Full Court in Goldie was Carr J. His Honour agreed with the majority on the potential application of the AAT Act s 42A(10) reinstatement discretion to review applications that had been dismissed for non-appearance. His Honour also agreed with the majority about the potential width of the AAT Act
   s 42A(10) concept of “error”. His Honour’s agreement was expressed in the following passages of his reasons:

   [73] I would accept that a purpose of s 42A(10) is to provide a power to reinstate an application which has been dismissed through administrative error on the part of the Tribunal. But I would not accept that s 42A(10) must be construed as applying only where there has been administrative error. I would construe the word "error" as including administrative error but extending beyond mere administrative error.
   

   [77] In my view, there is a significant degree of desirability of persons being able to rely on the ordinary meaning conveyed by the word "error". More importantly,

   
   

   s 42A(10) provides a mechanism of avoiding prolonging legal or other proceedings without compensating advantage. The mechanism is a relatively informal method of bringing a matter back to the Tribunal for reconsideration with a view to it being considered on the merits. It can be seen as a convenient, prompt and inexpensive means whereby errors which may have occurred in the exercise of the Tribunal's default jurisdiction can be rectified. That is, any sort of error in dismissing an application summarily, whether the error be administrative error or any other error.

1. Carr J’s dissent in Goldie was in relation to the arguable merits of the proposed appeal. Carr J thought it was arguable that the applicant had relevantly “appeared” and that the Tribunal had been wrong to dismiss the review application in the exercise of the non-appearance discretion conferred by AAT Act s 42A(2). Carr J also thought it was arguable that refusal of the adjournment application had been a denial of procedural fairness.

2. The reasoning of all three members of the Full Court in Goldie endorsed, or can accurately be regarded as having endorsed two propositions. The first is that a mistake made by a party, or by their representative, is capable of constituting an “error” to which the AAT Act s 42A(10) reinstatement discretion can apply. The second is that a failure by the Tribunal to have regard to the arguable merits of review application is also capable of constituting a relevant error for the purposes of AAT Act s 42A(10). Whether or not, in any particular case, such an “error” has occurred must depend on the particular circumstances, including the material before the Tribunal at the time of the events in which the dismissal discretion was exercised.

3. In this case, the applicant appeared at a telephone directions hearing and was fully informed of the case management strategy both at that hearing and in writing. He was legally represented.  The timetable was agreed at the directions hearing which required the provision of financial particulars relevant to the assessment of the matter. 

4. A dismissal is a harsh sanction, one only exercised as a last recourse and not undertaken lightly as explained in the Tribunal’s decision dated 13 July 2023.  It is exercised when the behaviour of a party frustrates a timetabled case management strategy and the provision of evidence necessary to conduct a complete review.  Repeated failures to comply with Tribunal Directions by Mr Heaton caused the dismissal.  There was no error by the Tribunal.  It was his failure to act in accordance with the case management timetable that resulted in the dismissal action, a consequence clearly explained at the telephone directions hearing and in the directions document.  In this situation, the tribunal is satisfied that there is no mistake by the Applicant or his legal representative.

5. The Tribunal would immediately rectify an error if that is what has occurred.  However, it was Mr Heaton’s actions that resulted in the dismissal and not error of the Tribunal.  The Tribunal can decide matters as it sees fit and its case management strategy in this matter met the objectives of the AAT and management of cases in the Child Support jurisdiction.   This case can be differentiated from Goldie on these grounds. The tribunal deems that it cannot make a decision about the merits of the matter in the absence of the documents that were sought under direction given Mr Heaton’s complex financial arrangements, which to date still remain undisclosed.  

Has the Tribunal misconstrued paragraph 42A(5)(b) of the Administrative Appeals Tribunal Act 1975?

1. The submissions allege that the Tribunal did not have regard to the term ‘reasonable timeframe’. 

2. Discussion on this point was addressed in the dismissal decision and will not be repeated here.   Certainly the Act does not define what a reasonable timeframe is, however, the case management strategy set at the directions hearing put both parties on notice of the timetable, the requirement for compliance and the outcomes attached to non-compliance.   In this case, the claims about failure to accord to a reasonable timeframe are nonsensical given that a timetable was set.

Has there been a denial of procedural fairness especially as the decision under review extends departure of the child support assessment until 2027?

1. Without being repetitive, the timetable and directions document indicated the consequences for non-compliance.   Mr Heaton was aware that his child support departure was set until 2027.

2. It is argued in submissions that not taking into account the significant consequences of the decision under review and the impacts on Mr Heaton into the future is a denial of procedural fairness.  It was submitted that decision making could proceed even in the absence of compliance with the directions, specifically, it was open to the Tribunal to hear and determine the application on the material before it noting that in circumstances where a party fails to provide full and frank disclosure, the Tribunal may be “reasonably robust in assessing the non-disclosing parents’ financial circumstances adversely to that parent and in favour of the other parent”. (see Morse & Potts (SSAT Appeal) [2010] FMCAfam 1305 at [80]).

3. The above approach is not appropriate in this case due to the complex nature of Mr Heaton’s employment arrangements and financial resources.  Further, the Child Support Agency also had difficulty reconciling Mr Heaton’s income due to lack of complete financial transparency and disclosure.  The Tribunal makes its decisions on fact, refusing to dangle in speculation particularly in matters of child support, which have far reaching consequences for both parents and also the welfare of a child. Should that material become available, nothing prevents Mr Heaton from reapproaching the Child Support Agency with updated particulars requesting departure.  It cannot be said that he has been denied procedural fairness. Speaking plainly, it is the tribunal that sets the case management strategy having regard to the issues before it.    An applicant cannot claim the denial of procedural fairness simply because it seeks to impose its own timetable.   

4. For these reasons, the application for reinstatement is refused.