Laing and Child Support Registrar and Anor
[2004] AATA 1204
•16 November 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1204
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2004/589
GENERAL ADMINISTRATIVE DIVISION ) Re Phillip Laing Applicant
And
Child Support Registrar
Respondent
And
Julianne Laing
Joined Party
DECISION
Tribunal Senior Member Joan Dwyer Date16 November 2004
PlaceMelbourne
Decision
The decision under review is affirmed.
Joan Dwyer
Senior Member
CHILD SUPPORT – application for review of decision granting extension of time to object to a refusal determination under s 98Z of Child Support (Assessment) Act 1989 – consideration of Hunter Valley factors – solicitors notified CSA of intention to object within statutory time frame – requested documentation from CSA – application made 11 days late – no prejudice to other parent within 11 day delay – conceded that decision as to which objection sought to be lodged contained an error – strong merits to substantive objection – decision under review affirmed.
PRACTICE AND PROCEDURE – recommendation that record keeping and administrative procedures of Agency be improved.
Comcare v A’Hearn (1993) 18 AAR 366
Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 58 ALR 305
REASONS FOR DECISION
16 November 2004 Senior Member Joan Dwyer 1. This is an application under s 98ZE(7) of the Child Support (Assessment) Act 1989 (“the Act”), for review of a decision by a delegate of the Child Support Registrar (“the Registrar”), made 20 April 2004, to grant Ms Laing an extension of time in which to lodge an objection to a decision made on 17 December 2003. That decision refused her application for a change of child support assessment as to the payments to be made by Mr Laing in respect of their daughter. The reason for the change sought by Ms Laing was that her husband had received a retrenchment payout which Ms Laing claimed should be taken into account in the assessment.
2. Mr Laing appeared at the hearing. Ms Fahey appeared on behalf of the Registrar. Ms Laing also appeared. The Tribunal had before it the documents (“the T documents”) lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) and the exhibits tendered at the hearing.
3. It seems appropriate to say at the commencement of these reasons that in my view the evidence in this matter establishes that the administrative procedures and record keeping of the Child Support Agency (“the CSA”) should be improved to provide more information relevant to determining issues as to time which may arise under the Act. When considering issues arising in respect of an application for an extension of time, or whether a step has been taken in the time allowed under an Act of Parliament, it is essential to have evidence of the dates letters were sent or received by the agency administering the relevant Act. As will become apparent, there are significant gaps in the evidence before me in this matter. I recommend that consideration be given to improving records of such matters.
Background
4. Mr Laing is liable to pay Ms Laing child support for their daughter, who is aged 16. The Respondent’s Statement of Facts and Contentions states, in paragraph 2, that on 11 November 2003, Ms Laing applied for a determination, under s 98B of the Act, to increase the annual rate of payment because of special circumstances. Ms Laing’s application is not among the documents before the Tribunal. Such a determination is a determination to depart from the provisions of the Act relating to administrative assessments. Part 6A of the Act deals with such determinations.
5. On 17 December 2003, a delegate of the Registrar refused to make a determination changing the assessment on the ground that a reason had not been established (T3). The reason given in the application was said to be that the child support assessment did not take into account the income, earning capacity, property and financial resources of the applicant, Ms Laing, or the respondent, Mr Laing.
6. The Respondent’s Statement of Facts and Contentions states, in paragraph 4, that on 6 January 2004, CSA sent letters informing Mr and Ms Laing that it had been decided on 17 December 2003, that there would not be any change to the assessment of child support. The T documents include only a copy of the letter addressed to Mr Laing (T4). That letter is dated 6 January. It advised Mr Laing that he could lodge an objection with CSA (T4, p11):
If you think that this decision is wrong, you can object by:
- Writing to CSA asking us to change the decision and including the reasons why you think the decision is wrong.
- Sending your objection to us within 28 days from the time you get the letter.
- We will tell the other party the reasons for your objection, so that they can respond.
- If you are not happy with the result of the objection, you can then ask a court to change our decision.
7. Mr Laing had no reason to be unhappy about the decision of 17 December 2003. The dissatisfied party was Ms Laing. There was no letter informing her of the decision before the Tribunal, although clearly she did receive such a letter. It seems to be assumed by CSA that a letter similar to that sent to Mr Laing and bearing the same date was sent to Ms Laing. There was no material in the T documents as to when that letter was probably posted, or as to when Ms Laing did or should be presumed to have received the letter which was probably sent to her. As she was the party who would have been aggrieved by the determination of 17 December 2003, it is unfortunate that there is no copy of the letter sent to her before the Tribunal.
8. Part 6B of the Act sets out the procedure for lodging objections against decisions under the Act. Section 98X(d) provides that a person may lodge an objection against a decision of the Registrar to make or refuse to make a departure determination under Part 6A. Section 98Z(3) provides that an objection to a refusal decision must be lodged within 28 days after service of notice of the refusal decision on the person concerned.
9. It is not known exactly when Ms Laing was served with notice of the decision of 17 December 2003. Even if her letter was dated the same day as that sent to Mr Laing, there was no evidence as to CSA practice to explain when it was probably signed and sent. Ms Fahey explained that it is CSA practice to allow 5 days from the date a letter bears for it to be served. That would mean that Ms Laing’s 28 days after service would have expired on Monday 9 February 2004.
10. The record of the decision on the extension of time application(T7, p16) notes that the CSA officer who made the decision noted “Obj due on 9/2/04 therefore only 11 days late”.
11. On or about 5 February 2004, CSA received a communication from Ms Laing’s solicitors indicating their intention to lodge an objection to the decision of 17 December 2003, and to apply for an extension of time to lodge the objection. The solicitors also requested a copy of Ms Laing’s original change of assessment application, in order to prepare the objection on her behalf. Unfortunately there is no photocopy of the solicitors’ communication before the Tribunal. There is only a computer record of the communication, which appears to have been typed within CSA on 6 February 2004. The Registrar’s documentation states that the letter was received on 5 February 2004, but as there is no copy of the letter or record of its acknowledgement it is hard to see how that can be known. The computer record in the T documents is clearly not a true copy. CSA’s computer transcription of the letter is dated 6 February 2004. It reads (T5, p12):
We act on behalf of client in relation to C/S matter, authority enclosed. We advise that our client objects to the decision dated 17 Dec 2003. We will be providing our client’s objection to CSA shortly. In order to prepare this obj we require a copy of the original application to change the C.S Assessment filed by client. Our client inadvertently did not retain a copy so we require a copy urgently. As we presently do not have the application in our possession we are unable to finalise the objections on behalf of our client and therefore will be lodging an application for an extension of time.
12. That transcription contains abbreviations and omits the name of the sender of the letter, its date and the date of receipt. I find it hard to understand why the file does not contain the original letter. If CSA is committed to computer files, surely more detail, including the date of receipt of a communication, should be recorded on those files.
13. After receiving the solicitor’s letter, as CSA states, on 5 February 2004, CSA sent a copy of Ms Laing’s change of assessment application to her solicitors by letter dated 10 February 2004. On or about 20 February, CSA received a letter from Ms Laing’s solicitors dated 20 February 2004 lodging her objection on to the decision of 17 December 2003, which refused her application for a determination changing the assessment of child support and seeking an extension of time to lodge the objection.
14. When I questioned Ms Fahey as to how a letter dated 20 February addressed to a Post Box could have been received on the date it bears, she suggested that it may have been faxed instead of or as well as being posted. There was no evidence on that issue.
15. The application for the extension of time in the letter dated 20 February 2004 gave reasons for the failure to lodge the objection within time as required by s 98ZD(2) of the Act. Section 98ZD of the Act provides:
98ZD 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 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.
The letter of 20 February 2004 stated (T6, p13):
On behalf of our client we seek an extension of the time to object to the decision. Our client did not have a copy of the original Application to change the assessment and therefore her objections were unable to be completed until a copy of this was obtained from the Child Support Agency. We therefore request that the time for objecting to the Notice of Decision be extended
16. The T documents do include a photocopy of the solicitor’s letter dated 20 February 2004, so there seems to be no general policy against about keeping paper files, but again it is an incomplete copy of the letter. It is dated 20 February 2004, but the letterhead of the firm of solicitors has been deleted and there is no date of receipt stamped on it. Ms Fahey said that it is CSA policy not to reveal to a parent the name of the other parent’s solicitor. I consider that to be an unnecessary precaution. So far as I am aware the Family Court does not consider it necessary to adopt that precaution. Ms Fahey agreed that there should be a date stamp giving a record of the date of receipt. She could not explain why it was missing on the photocopy before the Tribunal.
17. The date of receipt of any objection of any extension of time application must be recorded, because of ss 98ZC and 98ZE of the Act which require CSA to deal with such objections and applications within 60 days after they are lodged. In respect of applications for an extension of time, the Act provides in s 98ZE(2), that if the Registrar does not make a decision within that time, the Registrar is taken to have refused the application at the end of the 60 day period.
18. Section 98ZE of the Act provides:
98ZEConsideration of applications for extension of time for lodging
objections(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 the period.
(3) The Registrar must give written notice of the decision granting or refusing the application to the person who made the application.
…
(7)A person aggrieved by a decision under subsection (1) may apply to the AAT for review of the decision.
19. A delegate of the Registrar considered Ms Laing’s application for an extension of time, on 20 April 2004. The evidence does not establish when it was lodged, but accepting that it would not have been lodged before 20 February, that date was 60 days after the application was lodged. That means that, if it had not been decided on that date, it would have been taken to be refused under s 98ZE(2) of the Act.
20. The computer record of the decision (T7,p16) states:
Given that intention to lodge and enquiries made within time, it is reasonable to allow this ext. Based on details provided by pye in the objection, there are also strong merits to the objection.
…
21. The officer who made the decision noted in the computer record (T7, p16) that she had telephoned Mr Laing the day she made the decision to advise him of the objection and the extension of time application. The record continues (T7, p16):
I have explained the reasons behind allowing the EOT and pyr agrees from an administrative point that the EOT is reasonable however as it has now taken right on the 60 days allowed for processing, pyr now feels it has been such a long time since the COA that he is prejudiced by the decision to allow the EOT. I explained to pyr that he was within right to appeal to AAT.
…
22. By letter dated 20 April 2004 (T8, p17), CSA notified Mr Laing that Ms Laing had applied for an extension of time in which to object to the decision on her application for a change of assessment, and, at the same time, that her application for an extension of time had been granted. It is that decision which Mr Laing now seeks to have reviewed in this application. The letter also notified Mr Laing that Ms Laing had objected to the decision on her application for a change of assessment, and attached a copy of the objection. Mr Laing was advised of his right to lodge a notice opposing or supporting Ms Laing’s objection. He did not lodge any such notice.
23. Mr Laing explained at the hearing that he had obtained legal advice to challenge the extension of time before taking steps to oppose Ms Laing’s objection. The problem with that advice is that the decision on the objection was made on 5 July 2004, before the extension of time decision had been reviewed. Mr Laing would now require an extension of time in which to apply to review the decision of 5 July 2004 made on Ms Laing’s objection.
Consideration of Issues
24. The matters to be taken into account in exercising a discretion to extend time have been considered by the Federal Court in Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 58 ALR 305 and Comcare v A’Hearn (1993) 18 AAR 366. In A’Hearn, the Full Court held that while an explanation of delay will usually be given, it is not an essential precondition, and also that delay by a person’s solicitors may constitute an acceptable explanation for delay in making an application.
25. In Hunter Valley, the Court set out a number of relevant matters. I will consider those matters, bearing in mind that that an acceptable explanation of the delay is not an essential precondition, and that the question whether it is fair and equitable to extend time is the ultimate question. I will adapt the identification of paragraphs that is in the head note, to consider the following matters:
(a)an acceptable explanation of the delay;
(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;
(g)is it “fair and equitable in the circumstances” to extend the time.
(a) Acceptable explanation of the delay
26. When Ms Laing’s solicitors wrote the letter to CSA which CSA says was received on 5 February 2004, they explained that they were unable to finalise the objection on Ms Laing’s behalf, because they did not have a copy of the original change of assessment application. They requested a copy of that application. The objection and application for extension of time were lodged within 10 days of the application being sent to the solicitors by CSA, on 20 February 2004. The CSA officer who made the decision to extend the time for Ms Laing to lodge an objection, considered that the objection was only 11 days late, based on the office practice of allowing 5 days from the date of the letter for it to reach the addressee. If the letter dated 6 January 2004 was posted on 7 January 2004, the earliest it could have arrived in Geelong would have been 8 January, and probably 9 January would be a more realistic estimate. If Ms Laing received it on Friday 9 January 2004, the 28 days after service prescribed in s 98Z of the Act would not have expired until Monday 9 February 2004. Thus, the first contact from the solicitors was within time.
27. Ms Laing did not give formal evidence. She said that she did not know when she received the letter from CSA advising her of the decision not to change the assessment. She was not asked, either at the hearing, or by CSA prior to the decision to grant the extension of time, when she first saw her solicitor. Apparently CSA considered that the reason given by the solicitor, that the objection could not be finalised without a copy of Ms Laing’s original application for a change of assessment, was an adequate explanation of the delay, bearing in mind that CSA was satisfied that the original contact by Ms Laing’s solicitor was made within the statutory 28 days after service on Ms Laing of the decision of 17 December 2003.
28. The delay in this matter is very short and there is an acceptable explanation for it, in that the solicitor could not complete the objection without a copy of Ms Laing’s original application and the solicitor waited some days to receive the copy application from CSA. According to the record of decision (T7), the solicitor requested the copy document on 5 February 2004, and it was not sent until 10 February 2004, and no doubt received some days later than that.
29. I find that the combination of a preliminary contact by Ms Laing’s solicitor within the statutory period, and then a wait of some days to receive from CSA the copy of the application made by Ms Laing, provides an acceptable explanation of the delay of approximately 11 days.
(b) Action contesting the finality of the decision
30. Ms Laing took action to make CSA aware that she contested the finality of the decision made on 17 December 2003, within the statutory 28 days after service on her of that decision. The 5 February 2004 letter from Ms Laing’s solicitors advised that Ms Laing objected to the decision, and undertook that her objection would be provided shortly (T5, p12).
31. I find that Ms Laing took action during the statutory period to make the decision maker aware that she contested the finality of the decision of 17 December 2003.
(c) Prejudice to the respondent
32. Ms Fahey acknowledged that there was no prejudice to CSA, the respondent to these proceedings, caused by Ms Laing’s delay in lodging her objection to the decision of 17 December 2003.
33. Mr Laing contended that there was prejudice to him caused by the delay. The Registrar agreed that any prejudice to Mr Laing was relevant but submitted that any prejudice caused to him was due to the failure to lodge a response to Ms Laing’s objection between 23 April 2004 and 5 July 2004, rather than to Ms Laing’s 11 day delay in lodging her application.
34. I agree with CSA’s submission that the type of prejudice to be considered under this head is prejudice “in defending proceedings occasioned by the delay”. Usually that would be shown by difficulty, caused by the delay, in calling witnesses or locating documents. There was no evidence of that type of prejudice.
35. Mr Laing claimed in his submission of 27 August 2004 that he had been prejudiced by the decision to extend the time for Ms Laing to lodge her objection. The substance of his submission was that there was a period of nearly 5 months between the refusal decision on 17 December 2003, and the letter of 20 April 2004, which he received on 23 April 2004. It advised him that Ms Laing had objected to the change of assessment decision and had applied for, and been granted, an extension of time in which to lodge that objection. During the intervening months, he said he had “continued to use my redundancy benefits to support my business, support my living expenses, and meet my mortgage commitments. This depleted the ‘resource’ which the Agency considers ‘available’” (Applicant’s Statement of Facts and Contentions, para 2.3.1).
36. It is only prejudice to Mr Laing resulting from the 11 day delay in lodging the objection, which is relevant under this heading. The prejudice Mr Laing says he has suffered before he and Ms Laing were advised of the decision of 17 December 2003, or during the 28 days allowed for lodging an objection, or during the 60 days allowed for the Registrar to decide whether to grant the extension of time, are not relevant to this application. CSA took the full 60 days allowed by s 98ZE to make a decision on Ms Laing’s application for an extension of time in which to object. However, that period is outside the period under consideration in this application.
37. I note that, although s 98ZB requires the Registrar to serve a copy of the grounds of any objection on the other party to the assessment, there is no requirement in the Act to notify the other party of an application for an extension of time in which to object.
38. I agree with Mr Laing’s submission that as a matter of good practice the other party should be put on notice of the application for an extension of time as soon as it is received. That would have put him on notice of the fact that, although the period for lodging an objection had expired, there was an application to extend that period. I see that CSA’s policy document “The Guide” in Chapter 4.1 (T9, p20) states:
Procedural fairness
If CSA is considering granting an extension of time it will advise the other parent of the application. It will give them an opportunity to respond to the information CSA is taking into account.
CSA will not contact the other parent and advise them of the application unless it is considering granting the application for an extension of time.
39. That extract suggests that “the other parent” will be notified of an application for an extension of time, so that they have an opportunity to respond to the information in support of the application before the CSA. I do not consider that a telephone call to “the other parent” on the last day of the 60 period, as in this matter, is adequate for that purpose. Further, I doubt if it is appropriate or necessary to have a two stage approach to deciding whether or not to grant an extension of time. If “the other parent” was always sent a pro forma letter advising of the application for the extension of time as soon as it was received, the “other parent’s” response would be before the decision maker when the matter was first considered. That hopefully might allow matters to be considered earlier than the last day allowed under the Act.
40. Mr Laing was clearly a party interested in the outcome of Ms Laing’s application for an extension of time. I consider that he should have been given the opportunity to make a submission about that application shortly after it was received, and certainly well before a telephone conversation on the last day allowed under the Act for consideration of the extension of time application.
41. Mr Laing also contended that the Registrar had failed to consider relevant criteria, and “failed to consider my current capacity to pay” (Applicant’s Statement in Support, p2). He said that no consideration was given to his financial position (Applicant’s Statement of Facts and Contentions, paragraph 2.5). Those matters would no doubt be relevant considerations in relation to the substantive decision to allow Ms Laing’s objection and change the assessment, however, they are not relevant to the question of whether to extend the time for Ms Laing to lodge her objection, unless there had been evidence of any dramatic change in his circumstances during the 11 days of delay. There was no such evidence.
(d) Unsettling of other people or practices
42. The only matters relevant to the unsettling of other people are those relevant to Mr Laing, which I have considered under the heading of prejudice to the respondent.
43. I find that there is no prejudice to other people caused by granting Ms Laing the short extension of time she requires in which to object to the decision refusing her change of assessment application. Nor is there any upsetting of established practices caused by extending the time for Ms Laing to lodge her objection.
(e) Merits of Substantial Application
44. Mr Laing has conceded that the decision of 17 December 2003 which refused to change the assessment was incorrect. At the hearing, and in his Statement of Facts and Contentions at paragraph 2.4, and in his Statement in Support at p2, he stated, “Clearly, the Agency had made an error in the first review by not correctly calculating the amount that should have been taken into account from my redundancy benefits for assessment purposes”.
45. On 5 July 2004, Ms Laing’s objection was allowed. The decision refusing to change the assessment decision made on 17 December 2004 was revoked, and from 1 July 2004 to 30 June 2005, the child support liability of Mr Laing was set at $16,280 per annum instead of $260 per annum as it had been in the period since Mr Laing had been retrenched. The effect was to increase Mr Laing’s monthly instalments on a backdated basis from $21.67 to more than $1300.00, which was the figure before his retrenchment.
46. The delegate found that Ms Laing had established that the assessment was not fair because of the income, earning capacity, property and financial resources of Mr Laing.
47. As conceded by Mr Laing there was a significant error in the decision of 17 December 2003. That was recognised in the decision of 5 July 2004. I consider there are strong merits to Ms Laing’s substantive objection to the decision of 17 December 2003, which refused her application for a change of assessment.
(f) Considerations of fairness vis-à-vis other applicants and public interest
48. I consider that there are no considerations of fairness vis-à-vis other applicants or the public interest against granting Ms Laing the extension of time she seeks. There is a public interest in allowing people an extension of time to object to decisions which appear to be erroneous, or where there is a strongly arguable case that the decision was not correct, so long as that will not cause prejudice or be unfair to others or cause unsettling of established practices.
(g) Is it “fair and equitable in the circumstances” to extend the time
49. Under this heading it is necessary to balance the factors considered under the previous headings in order to decide what is fair and equitable in the particular circumstances of the matter before me. Ms Laing provided an acceptable explanation for the delay, she took action to make CSA aware that she was contesting the decision within the statutory period, and her substantial application has merit and was lodged only a short time after the statutory time limit. There is a public interest in circumstances such as Ms Laing’s in allowing extensions of time.
50. The respondent submitted that it was fair and equitable in the circumstances to extend the time for Ms Laing to lodge an objection, given that the objection and application for an extension of time were received within a relatively short period.
51. Mr Laing on the other hand, submitted that, because he was not informed for five months of the application by Ms Laing for an extension of time to lodge an objection, he had suffered prejudice and was now under substantial financial pressure as a result of the decision of 5 July 2004. However, there was no evidence as to prejudice directly related to the 11 day delay in lodging the objection. Mr Laing raised a number of matters which he claimed, with some justification, showed inefficiency on the part of CSA and which were not consistent with “best practice”.
52. I agree with Mr Laing that it would be appropriate for CSA to notify people in his position of the lodging of an application for an extension of time as soon as it is received. Had he been asked in February 2004 whether he consented to the 11 day extension sought by Ms Laing, he may well have done so. If he did not, he would have had the opportunity to provide his written reasons for not consenting and would have been on notice of the application. However, I do not find that the failure to give him notice means that the decision under review should be set aside. Mr Laing did not at the hearing advance any reason why the 11 day extension of time sought by Ms Laing should not have been granted.
53. Mr Laing concluded his statement in support of his case:
This trail of disregard for due process, fairness and failure to accept responsibility for errors produces an outcome which shows such disregard for me as to be contempt. In this way the Agency’s decisions, right from the decision to allow my ex wife’s objection, demonstrate a personal bias and prejudice against me, and a complete denial of fairness and justice which any reasonable minded member of the community would find completely unacceptable.
I therefore ask the Tribunal to decide in favour of my application.
54. The reasons advanced are not reasons to set aside the decision of 20 April 2004, which granted Ms Laing a short extension of time to lodge her objection to a decision which Mr Laing agrees was erroneous. But they do explain how his sense of grievance has arisen, partly as a result of the lack of notification to him of Ms Laing’s application for an extension of time, and partly because of the fact that CSA took the whole period allowed under the Act to make a decision on that application. Those matters suggest ways in which CSA could improve its administrative procedures in such a way as to reduce the likelihood of contested hearings like this one.
55. The decision under review will be affirmed.
I certify that the 55 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Joan Dwyer
Signed: Josephine McKay
AssociateDate/s of Hearing 11 November 2004
Date of Decision 11 November 2004
Representative of Applicant Self
Representative of Respondent Ms L Fahey
Representative of Joined Party Self
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