Kershna and Child Support Registrar
[2005] AATA 831
•29 August 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 831
ADMINISTRATIVE APPEALS TRIBUNAL )
) No T2005/83
GENERAL ADMINISTRATIVE DIVISION ) Re Paul Andrew Kershna Applicant
And
Child Support Registrar
Respondent
INTERLOCUTORY DECISION
Tribunal The Hon R J Groom (Deputy President) Date29 August 2005
PlaceHobart
Decision 1. The Tribunal has jurisdiction to decide the application for review lodged by the applicant.
2. The Tribunal determines not to exercise its discretion under section 41 (2) of the AAT Act to order a stay of the decision under review.
[The Hon R J Groom]
Deputy President
CATCHWORDS
Practice and Procedure – jurisdiction – child support – extension of time granted to lodge objection – meaning of “a person aggrieved” – Tribunal has jurisdiction to decide application
Child Support – stay application – principles to be applied – consideration of relevant issues – order refused
Child Support (Assessment) Act 1989 Part 6B
Administrative Appeals Tribunal Act 1975 sub-sections 41 (1) (2)
Cameron and Child Support Registrar [2005] AATA 45
Savage and Child Support Registrar and Anor [2002] AATA 334
Dallimore and Child Support Registrar and Anor [2004] AATA 219
Laing and Child Support Registrar and Anor [2004] AATA 1204
ASC v Deloitte Touche Tohmatsu (1996) 138 ALR 655 at 678
Huskey Injection Molding Systems Ltd v Commissioner of Patents (1990) 98 ALR 133 at 135
Australian Broadcasting Tribunal v Bond (1990) 94 ALR 11 at 22
Statutory Interpretation in Australia, 5th Edition by Pearce and Geddes, pages 228 to 230
Allan v Transurban City Link [2001] HCA 58
Madafferi and Minister for Immigration and Multicultural Affairs (2001) 106 FCR 76
Holas and Child Support Registrar [2002] AATA 480
Crossan and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 216
Kurukkal and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 146
Otter Gold Mines Ltd v Deputy President Forrest [1997] FCA 85
REASONS FOR INTERLOCUTORY DECISION
29 August 2005 The Hon R J Groom (Deputy President) 1. On 21 July 2005 Paul Andrew Kershna (“the applicant”) lodged with the Tribunal an application to review a decision of a delegate of the Child Support Registrar (“the registrar”) dated 16 June 2005. That decision granted to Ms Louise Carr (“Ms Carr”) an extension of time for lodging an objection to a determination dated 20 December 2004 which reduced the amount of child support payable by the applicant.
2. On 21 July 2005 the applicant also requested the Tribunal to make an order pursuant to section 41 (2) of the Administrative Appeals Tribunal Act 1975, staying the operation or implementation of the decision to extend time. The respondent opposes that request for a stay order. Ms Carr is a person whose interests are affected but to this point she has not applied to be joined as a party.
3. At the initial hearing of the request for a stay order held on 2 August 2005, the Tribunal referred to the recent decision in Cameron & Child Support Registrar [2005] AATA 445 (“Cameron”), in which the Tribunal in a similar application concluded that it had no jurisdiction in the matter. I invited the parties to make written submissions on the jurisdiction issue. A written submission was received from Ms Fahey, representing the respondent, in which it was contended that the Tribunal does have jurisdiction to review a decision under section 98ZE (1) of the Child Support (Assessment) Act 1989 (“the Act”) granting an application for an extension of time. The applicant supports that contention. He is not legally represented and understandably did not make a submission on this question of law.
4. At a further hearing held on 23 August 2005 the Tribunal considered both the jurisdiction issue and the request for a stay order. It received relevant documents into evidence and heard arguments on the issues. The Tribunal then reserved its decision on both matters. It was indicated that in light of the urgent nature of the stay application written decisions on both matters would be handed down at an early date.
DOES THE TRIBUNAL HAVE JURISDICTION?
5. The first issue to be determined is whether the Tribunal has jurisdiction pursuant to section 98ZE (7) of the Act to decide an application for review of a decision by the Registrar granting an application under section 98ZD for an extension of time for lodging an objection under Part 6B of the Act.
6. Section 98ZE of the Act provides as follows:
Consideration of applications for extension of time for lodging objections
98ZE (1) If a person applies to the Registrar under section 98ZD in relation to an objection, the Registrar must:
(a) consider the application; and
(b) either grant or refuse the application within 60 days after the application was lodged; and
(c) if the Registrar grants the application – deal with the objection under section 98ZC
(2) If the Registrar does not make a decision on the application within 60 days after the application was lodged, the Registrar is taken to have refused the application at the end of that period.
(3) The Registrar must give written notice of the decision granting or refusing the application to the person who made the application.
(4) The notice must include a statement to the effect that, if the person is aggrieved by the decision, application may, subject to the Administrative Appeals Tribunal Act 1975, be made to the AAT for review of the decision. Except where subsection 28(4) of that Act applies, the notice must also include a statement to the effect that the person may request a statement under section 28 of that Act.
(5) A contravention of subsection (3) or (4) in relation to a decision does not affect the validity of the decision.
(6) If an application under subsection 98ZD (1) is granted, the person who made the application is, for the purposes of this Act, taken to have duly lodged the objection to which the application relates.
(7) A person aggrieved by a decision under subsection (1) may apply to the AAT for review of the decision.
(8) In subsection (7), decision has the same meaning as in the Administrative Appeals Tribunal Act 1975.
7. Prior to Cameron the Tribunal had reviewed several decisions to grant an application for an extension of time since the introduction of part 6B of the Act. See Savage and Child Support Registrar and Anor [2002] AATA 334, Dallimore and Child Support Registrar and Anor [2004] AATA 219 and Laing and Child Support Registrar and Anor [2004] AATA 1204.
8. In Cameron the Tribunal held that the reference to:
“a person aggrieved by a decision under sub-section (1) in sub-section 98ZE (7) is a reference to the same person referred to in sub-sections 98ZE(3) and (4), that is; the person who made the application for an extension of time and to whom the Registrar is required to give notice of the decision.
The Tribunal said:
“... those provisions unequivocally evince an intention on the part of the legislature that the only person who may apply under sub-section (7) to the Tribunal for review is the person whose application under section 98ZD for an extension of time for lodging an objection has been refused by the Registrar ...”
9. I do not agree with that conclusion. In my view the use of the term “a person” in sub-section 98ZE (7) instead of the term “the person” in sub-sections 98ZE (3) and (4) indicates that a person other the person who made the application for an extension of time may apply to the Tribunal for a review under sub-section (1).
10. In this application the Tribunal is asked to review the granting of an extension of time to lodge an objection to a change in the amount of financial support payable by the applicant. The granting of the extension of time to object clearly exposes the applicant to a potential change in his liability to pay child support. It is reasonable to conclude that he is “a person aggrieved” by the decision.
11. He may be aggrieved but the question is whether he is “a person” within the meaning of section 98ZE (7). It seems to me he is. The plain meaning of “a person” should not exclude someone in the applicant’s position.
12. The use of the words “a person” in section 98ZE (7) suggests it is intended to have broader application than “the person” as used in other sub-sections of section 98ZE and other sections in Part 6B of the Act. It is reasonable to interpret that difference as being intentional and meaningful. One person applies for an extension of time but more than one person might be aggrieved by that extension. Any aggrieved person has the right to seek a review of an extension impacting adversely on that person. If it had been intended to limit the right to seek a review the legislation could easily have expressed it in clear terms by providing, for example, “if the person who made the application is aggrieved by .....”
13. The Tribunal is considering here the meaning of a statutory provision which is protective or remedial in nature. It provides a statutory right to seek a review of an administrative decision directly affecting the person. If there is any doubt about its meaning, and I don’t believe there is, then such a provision should not be read down or interpreted narrowly. For some examples of a liberal interpretation of statutory provisions see ASC v Deloitte Touche Tohmatsu (1996) 138 ALR 655 at 678, Huskey Injection Molding Systems Ltd v Commissioner of Patents (1990) 98 ALR 133 at 135, Australian Broadcasting Tribunal v Bond (1990) 94 ALR 11 at 22 and also the relevant examples given in Chapter 9 of Statutory Interpretation in Australia, 5th Edition by Pearce and Geddes, pages 228 to 230.
14. The Tribunal agrees with and adopts the following contentions in Ms Fahey’s written submission:
“In Cameron, the Tribunal identified the relevance of the principle in Allan v Transurban City Link [2001] HCA 58; that the question of whether a person is “a person aggrieved” under a particular Act should be answered by reference to the subject, scope and purpose of that Act.he respondent submits that in this context the “other parent” in the child support case, that is, the parent who did not lodge the application for an extension of time, is a person who may be “a person aggrieved by a decision under sub-section (1)
The respondent submits that the context provided by the subject, scope and purpose of the Child Support (Assessment) Act is quite different to that of other statutes where this question has been considered. The principle object of the Act, to ensure that children receive a proper level of financial support from their parents, demonstrates at a fundamental level that decisions, rights and obligations under the Act affect both parents. More specifically, a decision to grant an application for an extension of time to lodge an objection directly affects both parties to a child support case....”
15. In Cameron the Tribunal found that the provision of section 98ZE:
“.... unequivocally evince an intention on the part of the legislature that .... the only kind of decision which the Tribunal is entirely given the jurisdiction to review by [sub-section 7] is a decision of the Registrar refusing to grant a person’s application under section 98ZD for an extension of time for lodging an objection.”
However section 98ZE (8) defines “decision” for the purposes of sub-section (7) as follows:
“In sub-section (7), decision has the same meaning as in the Administrative Appeals Tribunal Act 1975”
Sub-section 3 (3) of the Administrative Appeals Tribunal Act 1975 contains a definition of “decision” which includes both granting and refusing an application.
16. A number of other reasons were advanced in Cameron in support of that decision however for the present purposes and bearing in mind the urgent nature of the stay application I do not consider it necessary to canvass them all. Suffice it to say that the applicant is aggrieved by the granting of the extension of time. By the use of the words “a person” in section 98ZE (7) of the Act the parliament intended that such a person would be entitled to apply to this Tribunal for a review of the decision. It is important that there be consistency so far as possible in decisions of this Tribunal. I therefore regret that I must disagree with the decision reached by the Tribunal in Cameron.
17. The Tribunal therefore concludes that it has jurisdiction to decide the application for review lodged by the applicant.
THE STAY APPLICATION
18. An application to the Tribunal for a review of a decision does not affect the operation of the decision or prevent action being taken under that decision (see section 41 (1) of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”)).
19. Section 41 (2) of the AAT Act gives the Tribunal power to stay or otherwise affect the operation or implementation of a decision. It provides as follows:
“The Tribunal or a presidential member may, on request being made, as prescribed, by a party to a proceeding before the Tribunal (in this section referred to as the relevant proceeding), if the Tribunal or presidential member is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review, make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates or a part of that decision as the Tribunal or presidential member considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review.”
20. The Tribunal has on occasions interpreted section 41 (2) in a narrow sense in accordance with the decision of the Full Federal Court in Madafferi and Minister for Immigration and Multicultural Affairs (2001) 106 FCR 76 (see for example, Holas and Child Support Registrar [2002] AATA 480 and also Crossan and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 216) but in other matters has adopted a broader approach in keeping with that generally adopted by Courts in considering stay applications (see Kurukkal and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 146 and the many cases cited in that decision).
21. By including in section 41 (2) of the AAT Act the words “.... after taking into account the interests of any persons .....” the legislature clearly intended that the Tribunal should weigh up all relevant considerations and the competing interests and rights of the parties before arriving at a decision on a stay application.
22. Each application for a stay order must turn on its own particular context and the specific facts of the application. Obviously in the wide range of matters that come before the Tribunal there are varied contexts and factual circumstances. I will now deal with the particular matters which I consider relevant in this application for a stay.
23. It is well established by the authorities that if there is a risk that an application will be rendered nugatory or worthless if a stay is not granted then that is a substantial factor for consideration in any stay application. An example is where the subject matter of an action would no longer exist without a stay. A further common example is if a person is to be deported out of the jurisdiction and would be unable to return to prepare, appear and present his case. In the Tribunal’s view the current application would not be rendered nugatory without a stay. If it succeeds any change in the assessment based on Ms Carr’s objection would then be null and void. It is not an ideal circumstance for the applicant and he may suffer some disadvantage but the application is not rendered nugatory.
24. Although it is inappropriate prior to a full hearing to express a final view about the merits of the substantive application it is usual for a Court or Tribunal in dealing with a stay application to make a preliminary assessment of the likelihood of its success. As Merkle J in Otter Gold Mines Ltd v Deputy President Forrest [1997] FCA 85:
“In general it has been accepted that the applicant for a stay should satisfy the court that reasons or circumstances exist which make it just that the Court make the order sought. Usually that will require that the applicant demonstrate that it has a point of substance to argue, which if successful, will result in judgement in its favour.”
25. There is obviously little point in granting a stay if it is evident on all of the information that the substantive application has little prospect of success.
26. The decision to make a change to the assessment was made on 20 December 2004 which the Tribunal notes was a few days before Christmas of that year. Section 98Z of the Act provides a 28 day period for objecting. It commences after service of the notice of the decision. It is agreed the period in this matter expired on the 24 January 2005. Ms Carr moved reasonably quickly and attempted to lodge an objection in writing by letter dated 6 January 2005. It was received by the Child Support Agency on 10 January 2005. This was well within the 28 day period. In her letter Ms Carr said “I object on the grounds already stated in my case”. Although the letter didn’t include detailed grounds as required by the Act it could be argued that Ms Carr was merely asking for a reconsideration of the decision on the grounds she had already communicated to the agency.
27. Ms Carr was clearly not “resting on her rights” but made it known at an early date her desire to object to the change to the assessment. Ms Carr’s legal representative then wrote on the 3 February 2005 and asked that the objection be based on “material that has already been provided by our client”. After communication from the agency a more formal objection, together with an application for an extension of time, was lodged on 28 February 2005. Rather surprisingly the application for an extension was not granted until the 16 June 2005. It was made clear at the hearing that the delay between 28 February 2005 and 16 June 2005, which was not the fault in any sense of Ms Carr, was a matter of significant concern to the applicant.
28. At the hearing the applicant expressed his serious concerns about the delay by Ms Carr in lodging her objection. He said Ms Carr had legal assistance to lodge a valid objection within time and failed to do so. He contended that no proper explanation had been provided by Ms Carr for the long delay before the valid objection was lodged.
29. Obviously the Tribunal should take into account matters of fairness and justice. There is no doubt that Ms Carr would be seriously disadvantaged if the substantive application succeeded. There would be no other right of review available to her if she has not lodged a valid objection. The Court has no jurisdiction unless an objection has been determined (see section 116 (1A) of the Act).
30. After carefully considering all of the material before it the Tribunal is of the view that the substantive application seeking to overturn the extension of time has very little prospect of success.
31. There was a good deal of discussion at the hearing about the merits or otherwise of Ms Carr’s objection to the change to the assessment. The applicant submitted that Ms Carr does not have an arguable case. He said there was nothing new in Ms Carr’s objection which had not already been considered. The applicant said he had not lodged a submission against Ms Carr’s objection because “I would simply be reiterating information that is currently on file”.
32. The decision of 20 December 2004 changing the earlier assessment of the amount of child support payable by the applicant resulted in a reduction of the amount from $4,263 per annum to nil. In her objection Ms Carr raises a number of issues concerning the manner in which her income was determined and her capacity to pay. On the material before it the Tribunal is unable to find that Ms Carr’s objection is without merit. It goes to the very heart of the matter that is in contention between the applicant and Ms Carr, namely the true capacity of the two parties to pay child support for their child. The Tribunal certainly hopes that this principal issue can be resolved as soon as possible and in a fair and objective way. However it is not a matter for the Tribunal to determine.
33. The Tribunal is aware that if a stay is not granted Ms Carr’s objection will then be considered. If there is a significant delay before the substantive application is heard and determined the applicant may suffer a financial disadvantage by being required to make payments in the interim. Also if Ms Carr’s objection is successful the applicant’s case will be prejudiced because he can then hardly argue in the substantive application that her objection was entirely without merit. These matters must clearly be taken into account.
34. After carefully considering all of the matters raised by the applicant and Ms Fahey for the respondent, including points made at the hearing and in Ms Fahey’s written submissions and weighing all of the relevant considerations the Tribunal concludes that a stay order is not appropriate to secure the effectiveness of the hearing and determination of the substantive application.
THE DECISION
35. The Tribunal therefore determines not to exercise its discretion under section 41 (2) of the AAT Act to order a stay of the decision under review.
I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R J Groom (Deputy President)
Signed : R Hunt (Administrative Assistant)
Date/s of Hearing 2 August 2005 and 24 August 2005
Date of Decision 29 August 2005
Solicitor for the Applicant Applicant on his own behalf
Solicitor for the Respondent Ms L Fahey, Child Support Agency, Legal and Quality Assurance
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