Kaz and Child Support Registrar
[2004] AATA 672
•16 June 2004
Administrative
Appeals
Tribunal
ORAL DECISION AND REASONS FOR DECISION [2004] AATA 672
ADMINISTRATIVE APPEALS TRIBUNAL } N° V2004/370
GENERAL ADMINISTRATIVE DIVISION }
Re:REBECCA KAZ
Applicant
And:CHILD SUPPORT REGISTRAR
Respondent
DECISION
Tribunal : Mrs Joan Dwyer, Senior Member
Date : 16 June 2004
Place : Melbourne
Decision: The application for an extension of time is refused.
[sgd] Mrs Joan Dwyer
Senior Member
CHILD SUPPORT – application for extension of time to lodge application for review – review sought of decision refusing application for extension of time to lodge an objection to Child Support Agency (“CSA”) decision – Hunter Valley factors considered – acceptable explanation of delay –- applicant not advised of time limit for seeking AAT review – no prejudice to CSA – issue as to merits of substantive application – failure by applicant to provide reasons for her failure to lodge objection to CSA decision in time as required by Child Support (Assessment) Act1989 (“the CSA Act”) – lack of merit in substantial application for extension of time in which to lodge objection to CSA decision – application refused.
PRACTICE AND PROCEDURE – recommendations as to changes in CSA procedure – recommend that advice to be given to persons affected by decisions made under s98ZE of CSA Act as to time limit for AAT review – suggestion that people be invited to amend applications for extensions of time which do not comply with requirement to state reasons for failure to lodge in time rather than the application simply being refused.
Administrative Appeals Tribunal Act 1975 s 29(2), 29(7)
Child Support Assessment Act 1989 ss 98ZD(1)(b), 98ZE
Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 58 ALR 305
Intervest Corporation Pty Ltd v Federal Commissioner of Taxation and Another (1984) 58 ALR 317
REASONS FOR DECISION
16 June 2004 Mrs Joan Dwyer, Senior Member
This is an application under s 29(7) of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) for an extension of time in which to seek review under s 98ZE(7) of the Child Support Assessment Act 1989 (“the Act”).
The decision sought to be reviewed is a decision made by the Child Support Registrar (“the Registrar”) on 3 March 2004 under s 98ZE(1)(b) of the Act to refuse an application for an extension of time in which to lodge an objection to a decision that Ms Kaz pay $367.25 a month for the support of her daughter, Erin. The decision was made on the basis that Ms Kaz’s ex-husband has shared care of Erin. It is not suggested that Ms Kaz herself has care of Erin. Erin presently resides and at all relevant times has resided, when she was not with her father, at the home of a girl friend and the girl friend’s parents. The reason for the refusal by the Registrar of the application for an extension of time was that Ms Kaz had not provided a reason why her objection had not been lodged in time as required by s 98ZD(2) of the Act.
Ms Kaz appeared in person. Ms L. Fahey appeared for the Child Support Agency (“the CSA”). I had before me the documents lodged by Ms Kaz with her application for review. The documentation left out what was probably the most significant letter. I was told that on 17 October 2003, Ms Kaz was advised by letter that a decision had been made that she pay the sum of $367.25 per month to the CSA, and that the letter also advised her that she had 28 days in which to lodge an objection to that letter. I did not see that letter but Ms Kaz did not dispute that it did advise her of the 28 day time limit.
I had before me two short letters from Ms Kaz dated 17 October 2003 and 7 January 2004. Ms Kaz claimed that she had sent the first letter on 17 October 2003 seeking to object to the decision of that date, and that she had sent the second letter on 7 January 2004, after being told that day or the previous day by an employee of the CSA that the earlier letter had not been received. She said that she was told that if she wished to lodge an objection, she should do so together with an explanation of her delay in lodging the application, and should seek an extension of time in which to lodge that objection. Her letter of 7 January 2004 gives no reason for, or explanation of, the delay in lodging the application in time.
The matters to be taken into account in deciding whether or not to grant an extension of time are set out in the decision of Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 58 ALR 305. I will consider the evidence as to each relevant matter. I am using the (a), (b), (c) identification of paragraphs, as is in the head note. The factors are there set out as follows:
(a)the fact that the applicant bears the onus of rebutting the prima facie rule that no s 5 proceedings commenced outside the prescribed period will be entertained by the court by showing an “acceptable explanation of the delay” and that it would be “fair and equitable in the circumstances” to extend the time;
(b)any action taken by the applicant, apart from the actual making of an application for review, which continues to make the decision‑maker aware that the finality of his decision is being contested;
(c)any prejudice to the respondent which may have resulted from the delay;
(d)any unsettling of people, other than the respondent, or of established practices;
(e)the merits of the substantial application;
(f)considerations of fairness as between applicants and other persons in like positions: it is not only prejudice vis-à-vis the parties but against the wider public interest which must also be taken into consideration.
I have decided, as to (a), that there is an acceptable explanation of Ms Kaz’s failure to lodge her application with the AAT within the 28 day period allowed in s 29(2) of the AAT Act.
First, the letter of 3 March 2003, which contains the decision Ms Kaz seeks to review, told her she could apply to the AAT for a review, but it did not tell her that the AAT Act had a 28 day time limit. I recommend that the CSA amend the pro forma letter containing a decision which can be reviewed by the AAT to provide that advice to persons who may be aggrieved by a decision.
Secondly, Ms Kaz said, and Ms Fahey agreed, that when she phoned the CSA on 12 March 2004 about the decision letter, although she was given the telephone number of the AAT, she was still not told about the 28 day time limit.
Thirdly, Ms Kaz’s note of her telephone conversation with a member of the AAT Registry staff later that day indicates that she was again not told of the 28 day time limit.
As to (b), there is evidence from Ms Kaz, which is confirmed by the CSA file note, that she did, on 12 March 2004, make the CSA aware that the finality of the decision not to accept her objection was being contested.
As to (c), Ms Fahey conceded that there was no prejudice to the CSA as a result of the fact that Ms Kaz lodged her application with the AAT on 28 April 2004 rather then by 5 April 2004.
As to (d), Ms Fahey did not contend that there would be any relevant unsettling of people or of established practices in granting the extension.
Paragraph (e) deals with the merits of the substantial application to this Tribunal. That is a significant issue and I will return to it soon.
Ms Fahey submitted as to (f) that it is in the public interest that there is compliance with time limits in legislation. That is correct as a general principle, but it can of course be over-ridden when it is fair and equitable that an extension of time should be given.
As I have indicated, the real issue is the substantial merits of Ms Kaz’s application to have her objection decision considered out of time. She gave no explanation of her delay in her letter of 7 January 2004 applying for an extension of time to lodge her objection with the CSA, even though she said that the CSA employee to whom she spoke the previous day had told her to include in her letter an explanation of her delay. She was seeking to lodge it approximately two and a half months after the decision of 17 October 2003, rather than within the 28 day time limit of which she had been advised by letter.
In her application for an extension of time from this Tribunal, and in her application for review lodged with this Tribunal, Ms Kaz said that she had lodged an earlier letter of objection to the CSA decision on 17 October 2003. Ms Kaz repeated that claim in her evidence, and a copy of the letter she said had been sent to the CSA on 17 October 2003 was before me.
I doubt that such a letter was sent. I am of that view, first, because of the wording of the letter. It asks for an extension of time to lodge an objection, even though it is dated the same day as the decision to which it is apparently objecting.
Secondly, when Ms Kaz did send the letter of 7 January 2004 seeking an extension of time in which to make an objection, she gave no reason as to why she should be granted an extension of time, in spite of the advice she said she had been given that she should provide an explanation of the delay. That was good advice as s 98ZD(2) of the Act provides that a person seeking an extension of time in which to lodge an objection must state the reasons for the failure to lodge in time. If Ms Kaz had sent an earlier letter which had apparently not been received, it would have been logical for her to provide that explanation in the letter of 7 January 2004, seeking an extension of time to lodge the objection, even if Ms Kaz was not aware of s 98ZD(2) of the Act. She had been advised to provide an explanation.
Section 98ZD of the Act reads as follows:
Application for extension of time
(1)If the period for lodging an objection under this Part has ended, a person may lodge the objection with the Registrar, together with a written application asking the Registrar to consider the objection in spite of the ending of the period.
(2)The application must state the reasons for the person's failure to lodge the objection within the period required by this Part.
Because of the requirement in s 98ZD(2) that an application for an extension of time in which to lodge an objection must state the reasons for the failure to lodge within time, and because Ms Kaz’s application did not do so, and because Ms Kaz did not give any persuasive reason at the hearing, I cannot see that she has any reasonable prospect of success in her substantive application for an extension of time in which to lodge an objection to the decision of 17 October 2003.
However I must say that I regret that between 7 January 2004 and 3 March 2004, when the decision was made, Ms Kaz was not told that her application was incomplete because it failed to state the reasons for the failure to lodge in time. In my view it would have been good practice for the Registrar to advise her of the requirements of s 98ZD(2) and give her the opportunity to provide a reason for her failure to lodge the objection in time. I suggest that consideration be given by the Registrar to amending the procedures of the CSA so as to advise applicants that a request must state the reasons for the person’s failure to lodge the objection in time. People should be given the opportunity to amend their request by stating the reason, rather then simply having the request refused on the basis that no reason was given for the failure to lodge in time, and therefore the request does not comply with s 98ZD(2) of the Act.
I find that there is nothing to show that the substantial merits of Ms Kaz’s application for an extension of time to lodge an objection indicate that she would have a reasonable prospect of success in her application for an extension of time in which to lodge her objection to the CSA decision.
Ms Kaz explained her distress at her estrangement from her daughter. She said her daughter does not live with her, but she believes that she spends most of her time at the home of a girl friend rather then with her father. She said her hope is that her daughter and she will be reconciled one day.
I recognise the pain the present situation is causing Ms Kaz, but that is not a matter I can do anything about. Ms Kaz discussed during the hearing the option of seeking a variation of the current assessment on the basis of information she has recently received. Of course that would be a separate process and if there were any appeal or review of such a decision, it would be by a court rather than by this Tribunal.
The only matter before me is the application for an extension of time in which to seek a review by the AAT of the decision to refuse to extend time for Ms Kaz to lodge an objection with the CSA.
I accept Ms Kaz’s reason for lodging her application with the AAT somewhat less than a month late, but the difficulty for her is that I cannot see that she has a reasonable prospect of success in having the decision of the Registrar not to extend time for the lodging of the objection varied. In Intervest Corporation Pty Ltd v Federal Commissioner of Taxation and Another (1984) 58 ALR 317, Smithers J said at 325:
…
Although s 11 does not in terms place an onus on an applicant seeking an allowance for further time within which to lodge an application for an order of review, it is nevertheless incumbent upon him to satisfy the court that the extension of time should be granted. It is not for the decision‑maker to establish that the applicant does not have a case for an extension of time. The applicant seeks an indulgence. It is for him to prove that he is entitled to it. But the court should not surround the exercise of its discretion with unnecessary constraints such as a requirement that there be special circumstances or considerations of that kind. The statute does not require them. Nor should the courts. It is best left to the good sense of the judge hearing each case to determine whether, on the evidence before him, the court’s discretion should be exercised in favour of granting an enlargement of time to bring an application for an order of review.
…
In this matter I am not persuaded that the extension of time should be granted. The substantial merits of the application for an extension of time to lodge the objection with the CSA do not indicate that Ms Kaz would have a reasonable prospect of success in that application. I have decided to refuse the application for an extension of time.
I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Joan Dwyer, Senior Member.
Signed: Josephine McKay
Associate
Date/s of Hearing 16 June 2004
Date of Decision 14 February 2003
Applicant’s Representative SelfRespondent Representative Ms L Fahey
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