Laurie and Child Support Registrar and Filho
[2009] FMCAfam 721
•10 July 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LAURIE & CHILD SUPPORT REGISTRAR and FILHO | [2009] FMCAfam 721 |
| CHILD SUPPORT – Appeal from decision of SSAT – extension of time to lodge an objection – whether child support legislation constitutionally invalid – procedural fairness – whether SSAT failed to provide appellant the appropriate opportunity to respond to material relied upon – need to identify question of law – appeal dismissed. |
| Child Support (Registration and Collection) Act 1988, ss.81, 82, 83, 101, 103S, 103T, 110B, 110C, 110D Constitution ss.51(xxxi), 71 |
| Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Harris v Caladine (1991) 172 CLR 84 Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 Kioa v West (1985) 159 CLR 550 Kruger v Commonwealth (1996) 190 CLR 1 Laurie & CSR & Filho [2008] FMCAfam 1286 LDME & JMA [2007] FMCAfam 712 Luton v Lessels (2002) 210 CLR 333 Mutual Pools & Staff Pty Ltd v Commonwealth (1994) 179 CLR 155 Thomas v Mowbray (2007) 233 CLR 307 |
| Applicant: | MR LAURIE |
| First Respondent: | CHILD SUPPORT REGISTRAR |
| Second Respondent: | MS FILHO |
| File Number: | SYC 2252 of 2008 |
| Judgment of: | Sexton FM |
| Hearing date: | 25 March 2009 |
| Date of Last Submission: | 25 March 2009 |
| Delivered at: | Sydney |
| Delivered on: | 10 July 2009 |
REPRESENTATION
| Solicitors for the Applicant: | Mr G. Potkonyak |
| Solicitors for the First Respondent: | Australian Government Solicitors |
| Solicitors for the Second Respondent: | No appearance |
ORDERS
The appellant’s Notice of Appeal (Child Support) filed on 21 April 2008 and Amended Notice of Appeal (Child Support) filed on 23 May 2008 is dismissed.
The First Respondent’s application for costs is listed for hearing at 10.00a.m. on 7 September 2009.
The First Respondent file and serve any material on which they intend to rely by no later than 4.00p.m. 30 July 2009.
The Second Respondent file and serve any application for costs and affidavit in support within 21 days, such application is returnable on
7 September 2009noting the parties should expect the matter to be heard on that day.
The Appellant file and serve any material in response to the application or applications for costs by no later than 4.00p.m. on 21 August 2009.
IT IS NOTED that publication of this judgment under the pseudonym Laurie & Child Support Registrar and Filho is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 2252 of 2008
| MR LAURIE |
Applicant
And
| CHILD SUPPORT REGISTRAR |
First Respondent
| MS FILHO |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an appeal by Mr Laurie from a decision of the Social Security Appeals Tribunal. On 3 March 2008, the Tribunal affirmed a decision of the Child Support Registrar to refuse Mr Laurie’s application to extend time to lodge an objection against a change of assessment decision dated 18 December 2000.
Mr Laurie has two children, the subject of a child support assessment, [X] born in 1994 and [T] born in 1997. Ms Filho is the mother of the two children, and the child support payee.
The matter was first registered with the Child Support Agency on
27 January 1997, shortly after Mr Laurie and Ms Filho separated.
Background
On 5 October 2000, the mother lodged a change of assessment application with the Child Support Registrar under Part 6A of the Child Support (Assessment) Act 1989 seeking an increase in the child support payable by the appellant on the basis of the costs of child care being greater than 5% of the payee’s child support income, and on the basis of the appellant’s financial position.
On 18 December 2000, a Senior Case Officer found both reasons established and decided to increase the annual rate of child support payable by the appellant to $10,534.20.
On 15 August 2007, the appellant requested an extension of time to lodge an objection to the change of objection decision made on
18 December 2000.
On 5 October 2007, the Child Support Registrar refused the appellant’s request, based on a failure to establish a satisfactory reason for the delay, the merit of the objection and the prejudice to the payee.
On 29 October 2007, the appellant lodged an appeal to the Social Security Appeals Tribunal [SSAT] seeking a merits review of the Registrar’s decision of 5 October 2007.
On 18 February 2008, the SSAT heard the appeal. On 3 March 2008, the SSAT affirmed the Registrar’s decision.
On 21 April 2008, the appellant filed a Notice of Appeal in this Court in relation to the Tribunal’s decision.
On 23 May 2008, the appellant filed an Amended Notice of Appeal (Child Support).
On 10 June 2008, the matter came before his Honour Federal Magistrate Lindsay. The appellant’s oral application for the appointment of Mr F as a McKenzie Friend was dismissed; the appellant was ordered to comply with Rule 25A.05 of the Federal Magistrates Court Rules 2001; the appellant was ordered to file and serve any affidavit in relation to the appointment of a McKenzie Friend or in relation to any application for assistance by Mr F by 2 September 2008; each party was ordered to file and serve any further affidavits on which they intended to rely at hearing and an outline of argument and list of authorities by 2 September 2008; the matter was listed for hearing before me on 16 September 2008.
On 4 August 2008, the applicant filed an Application in a Case seeking an order that the court provide him with a copy of the Tribunal transcript.
On 19 August 2008, the Application in a Case was dismissed by his Honour Federal Magistrate Jarrett, in the absence of the parties.
On 16 September 2008, the appellant sought an adjournment of the hearing because he was awaiting the result of an application for review of the decision to refuse him legal aid. The court adjourned the hearing, but noted that the matter would be heard on the adjourned date of
25 November 2008, whether or not the appellant’s legal aid review application was successful. The court also noted the appellant would need to show cause why he had not complied with orders of 10 June 2008 in relation to an application for a McKenzie Friend before any further application for a McKenzie Friend would be considered.
On 11 November 2008, Mr George Potkonyak filed an Application in a Case seeking these orders:
1. That leave be granted to Mr George Potkonyak to appear as the legal representative for the appellant Mr Laurie at the hearing of his appeal from the decision of the SSAT of 3 March 2008 and at any other subsequent proceedings in the same matter and in this Court, if such arise.
2. That the above order is made ex parte in chambers and the parties are duly notified of the decision not less than 7 days before the appeal hearing set for 25 November 2008.
On 25 November 2008, I heard the appellant’s oral application for the appointment of Mr Potkonyak as his advocate in the appeal proceedings, and adjourned the substantive hearing of the appeal until
2 December 2008. The appellant did not advise the court he would be unavailable on that date. On the contrary, the transcript of the proceedings on that date makes clear that the appellant confirmed his availability at either 10 a.m. or 2.15 p.m. on 2 December 2009[1]. The appellant made no reference to his brother’s death in Greece, or of his need to travel overseas.
[1] At page 12 of the transcript of proceedings of 25 November 2008
On 26 November 2008, the Registrar of this Court received a facsimile letter from the appellant advising that he would be overseas for 4 to 5 weeks and requested the date for hearing of 2 December 2008 be vacated, and a new date allocated “preferably early in the new year”. The appellant said his brother in Greece had died.
On 28 November 2008, I dismissed the application for Mr Potkonyak to appear for the appellant and published detailed reasons for judgment[2].
I reserved the costs of the Child Support Registrar and the costs of
Ms Filho, the child support payee, to the hearing of the appeal.
[2] Laurie & CSR & Filho [2008] FMCAfam 1286
On 2 December 2008, in light of the advice the court had received about the appellant’s absence overseas, I vacated the hearing date of
2 December 2008in chambers, without objection from the respondents, and listed the matter for hearing on 25 March 2009. I ordered the appellant to file and serve, by no later than 21 days prior to hearing, evidence of the death of his brother in Greece, evidence as to when the appellant became aware of the death of his brother, and certified copies of the appellant’s passport and airline tickets (or boarding passes) evidencing his travel overseas.
On 2 March 2008, the applicant filed an affidavit in accordance with the orders of 2 December 2008.
On 13 March 2009, the appellant, now represented by Mr Potkonyak, (by then a practising solicitor) filed a Notice of a Constitutional Matter under section 78B of the Judiciary Act 1903.
On 25 March 2008, I heard submissions from Mr Potkonyak for the appellant and Mr Gouliaditis representing the Child Support Registrar, in relation to the constitutional matters raised by the appellant in the section 78B notice. I then proceeded to hear the substantive appeal from the decision of the SSAT.
Parties to the proceedings
Mr Maurice of counsel, representing the child support payee, appeared for the first time in these proceedings on 25 November 2008.
Mr Maurice advised the court that Ms Filho had not been served with the Notice of Appeal or any other material filed in support of the appeal as required by Rule 25A.07 of the Federal Magistrates Court Rules.
Mr Maurice sought leave to appear in the proceedings and to make submissions. There was no objection by the appellant or the Child Support Registrar to this course.
Section 110D of the Child Support (Registration and Collection) Act 1988 (“the Registration Act”) provides that the parties to an appeal under Division 3 of Part VIII are the “people who were the parties to the SSAT proceedings when the SSAT made the relevant decision.” In this case, the decision being reviewed was a decision to refuse an extension of time for the lodging of an objection. Therefore, unless
Ms Filho applied in writing to the Executive Director of the SSAT to be made a party to the review pursuant to section 101(2) of the Act, then only the appellant and the Child Support Registrar are parties to the review. Ms Filho was not named as a party to the review in the SSAT Reasons for Decision.On 25 March 2009, Mr Potkonyak, solicitor representing the appellant, opposed Ms Filho being named as a respondent to the proceedings. Mr Potkonyak submitted that Ms Filho “was not a party originally and she just appeared as a party all of a sudden half way through the proceedings with no order by Your Honour, no application by the mother, nothing.” There was no appearance by Ms Filho or her counsel on 25 March 2009. Mr Maurice had advised of his unavailability on that date and Ms Filho noted an objection to the hearing date in an affidavit sworn by her on 23 March 2009 and filed the day before the hearing. Ms Filho did not, however, make an application for an adjournment of the hearing. Although he objected to Ms Filho being named as a respondent, Mr Potkonyak did not object to the affidavit of Ms Filho sworn 23 March 2009 being read in the proceedings.
Rule 11.03 of the Federal Magistrates Court Rules 2001 provides that a person may apply to the Court to be included as a party to the proceedings. On 25 November 2008, I gave leave to Mr Maurice to file a Notice of Address for Service in Court as counsel for the payee. Thereafter Ms F was named as the second respondent in the proceedings.
Time limit on appeal
Section 110C(1) of the Registration Act provides that any appeal to a Court from a decision of the SSAT must be commenced in a court within the time prescribed by the applicable Rules of Court or such further time as allowed by the applicable Rules.
Rule 25A.06(2) of the Federal Magistrates Court Rules 2001 provides that a Notice of Appeal from a SSAT decision must be filed within
“28 days of receiving a written statement of reasons for the decision under subsection 103X(3) or (5) of the Registration Act”. Rule 3.05 provides the Court with the discretion to extend or shorten the time fixed by Rule 25A.06, even if the time fixed has passed.The SSAT decision recorded that Reasons for the Decision were despatched on 14 March 2008. However, the appellant adduced no evidence as to when he received those reasons. The original notice of appeal was filed on 21 April 2008, and may therefore have been out of time. None of the parties raised an issue as to whether leave was required by the appellant to extend time for the filing of the appeal, but to the extent necessary, I give such leave.
The Constitutional Issues
On 13 March 2009, a Notice of a Constitutional Matter under s.78B of the Judiciary Act 1903 was filed on behalf of the appellant. These issues are not referred to in the Amended Notice of Appeal (Child Support)[3], and relied on by the appellant in his appeal from the SSAT decision. Mr Potkonyak for the appellant says the section 78B Notice is sufficient without amending the Notice of Appeal[4]:
…because the purpose of that notice is if the legislation is found to be unconstitutional then the appeal will not proceed at all because it will be appealing something that never existed so I can’t see any point…
[3] Filed on 23 May 2008
[4] At page 9 of the transcript of the proceedings of 25 March 2009
I agree with the submission on behalf of the Registrar that the mere filing of a section 78B Notice is not sufficient to raise the constitutional issues in the appeal proceedings. These grounds should have been included in a further Amended Notice of Appeal. However, given that the matter dates back to a decision of the Registrar of December 2000, the length of time since the Notice of Appeal was filed and the manner in which the appellant has conducted this litigation, I determined, despite these procedural irregularities, to hear and determine both aspects of the matter, given court time had been allocated.
Compliance with s.78B of the Judiciary Act
Section 78B of the Judiciary Act 1903 (Cth) provides that:
Where a cause pending in a federal court including the High Court or in a court of a State or Territory involves a matter arising under the Constitution or involving its interpretation, it is the duty of the court not to proceed in the cause unless and until the court is satisfied that notice of the cause, specifying the nature of the matter has been given to the Attorneys‑General of the Commonwealth and of the States, and a reasonable time has elapsed since the giving of the notice for consideration by the Attorneys‑General, of the question of intervention in the proceedings or removal of the cause to the High Court.
Mr Potkonyak, for the appellant, submits that he gave notice of the constitutional matters referred to in the s.78B Notice to the Attorneys-General of the Commonwealth, the States and the Territories in accordance with the requirements of s.78B of the Judiciary Act 1903, by letter sent to all the Attorneys-General on 16 March 2009, enclosing the Notice. Mr Potkonyak could not provide the Court with a copy of any of the nine letters he had sent, but did tender copies of the responses he had received from the Attorneys-General of the Commonwealth, Tasmania and the Australian Capital Territory declining to intervene in the proceedings[5].
[5] Exhibit 2
The Registrar’s solicitor submits that the duty under s.78B is twofold: firstly, the Court must be satisfied that the Notices have been sent to the Attorneys-General of the Commonwealth and of the States, and secondly, the Court must be satisfied that a reasonable time has elapsed since the Notices were sent for consideration by the Attorneys-General of the question of intervention in the proceedings or removal of the cause to the High Court. The submission on behalf of the Registrar was that the Court could firstly be satisfied that the notices had been sent on the basis of an undertaking given by Mr Potkonyak, as an officer of the court, and the three responses received[6] and secondly, the Court could be satisfied that, even though only a relatively short time had passed since the Notices were sent, the period of time was reasonable for consideration of the question of intervention.
[6] Exhibit 2
On balance, I accepted Mr Gouliaditis’ submissions that the requirements of s.78B had been complied with by the appellant and that the Attorneys-General of the Commonwealth and of the States were on notice of the proceedings, and had chosen not to participate.
The issues raised in the Notice
I deal firstly with the constitutional questions raised in the appellant’s Notice of a Constitutional Matter filed on 13 March 2009.
The Notice states that[7]:
Sections 98C(2) and 98C(3) of the Child Support (Assessment) Act 1989 are repugnant to the Constitution and void ab initio on the grounds that:
(a) The sections purport to grant the judicial power to an administrative person, thus in breach of Chapter III of the Constitution; and/or
(b) The sections purport to make law for the acquisition of property other than on just terms, thus, in breach of s51(xxxi) of the Constitution.
Section 29(1) of the Child Support (Assessment) Act 1989 grants power to an administrative person to make determination without having to conduct any inquiries or investigations.
Section 98H(4) grants power to an administrative person to conduct hearing, inquiry or investigation without regard to the rules of evidence.
Two determinations by the Deputy Registrar of the Child Support Agency, subject to the application for review by the applicant, have been based on the Deputy Registrar’s assessment of the applicant’s earning capacity. Such an assessment could not have been constitutionally made without proper conduct of the hearing, inquiries or investigations with full regard to the rules of evidence.
[7] Notice of a Constitutional Matter under section 78B of the Judiciary Act 1903 filed on 13 March 2009
The appellant’s solicitor orally confirmed at the hearing that his constitutional challenge to the provisions of the Child Support(Assessment) Act 1989 (“the Assessment Act”) related to the provisions of that Act as they existed at the time of the Registrar’s decision on
18 December 2000.
The Notice did not challenge any provision of the Registration Act. However, in oral submissions, the appellant’s solicitor raised objections to certain sections of Part 7 and 8 of the Registration Act.
Sections 98C(2) and (3) of the Assessment Act purport to grant judicial power
The appellant’s solicitor submits these provisions are constitutionally invalid in that they purport to confer judicial power on an administrative person in breach of Chapter III of the Constitution. Section 98C of the Assessment Act, as it existed in December 2000, provides:
Matters as to which Registrar must be satisfied before making determination
(1) Subject to this Part, if:
(a) an application is made to the Registrar under section 98B; and
(b) the Registrar is satisfied:
(i) that one, or more than one, of the grounds for departure referred to in subsection (2) exists; and
(ii) that it would be:
(A) just and equitable as regards the child, the liable parent, and the carer entitled to child support; and
(B) otherwise proper;
to make a particular determination under this Part;
the Registrar may make the determination.
(2) For the purposes of subparagraph (1)(b)(i):
(a) the grounds for departure from the provisions of this Act relating to administrative assessment of child support in relation to the child are the same as the grounds for departure set out in subsection 117(2); and
(b) sub‑subparagraph 117(2)(b)(i)(C) has effect subject to subsections 117(3A) and (3B).
(3) Subsections 117(4) to (9) (inclusive) apply to the Registrar in the exercise of his or her powers under this Division as if:
(a) any reference in those subsections to the court were a reference to the Registrar; and
(b) any reference to an order were a reference to a determination.
The appellant’s solicitor relies on the High Court decision of Harris v Caladine[8] as authority for his submission. In particular, he refers to paragraph 21 of his Honour Justice McHugh’s judgment when his Honour states that a court created under the constitution:
…may be authorised to delegate the exercise of its judicial power to an officer of that Court provided that the exercise of the power is subject to review by way of de novo hearing by a Justice or a Judge of that Court.
[8] (1991) 172 CLR 84
The Registrar’s solicitor submits that section 110 of the Assessment Act, as it existed in December 2000, provided for a de novo review by a Court of a Registrar’s decision. Further, Harris v Caladine can be distinguished from this case as it involved a Registrar of a Court exercising judicial power. I agree with these submissions and find no merit in the appellant’s contention.
The High Court has held[9] that the Child Support Registrar does not exercise judicial power when exercising a power under the child support legislation, and the Assessment Act does not purport to confer judicial power upon the Child Support Registrar. His Honour Chief Justice Gleeson [10] states the position:
[9] Luton v Lessels (2002) 210 CLR 333
[10] At 21 and 25
The fact that the Registrar makes assessments, or departure determinations, by the application of legal criteria to the facts and circumstances of a particular case does not mean that what is involved in an exercise of judicial power. The making of decisions by the application of legal criteria to facts as found is characteristic, but not distinctive, of the judicial function. It is also characteristic of many administrative functions …
… the Assessment Act does not purport to confer judicial power upon the Child Support Registrar.
I find the appellant’s constitutional challenge, on this basis, without merit.
Sections 98C (2) and (3) purport to make law for the acquisition of property other than on just terms
The appellant’s solicitor contends that these provisions of the Assessment Act provide for the acquisition of property other than on just terms and are therefore invalid under s.51 (xxxi) of the Constitution.
I do not accept this submission. The High Court in Luton v Lessels considered comprehensively the characteristics of the child support legislative scheme[11]. The High Court lists the powers conferred by s.51 which support the Assessment Act as s.51(xxii), (xxxvii) and (xxxix) and s.122 of the Constitution[12]. I agree with the submissions of the Registrar that the Assessment Act falls outside s.51(xxxi) of the Constitution as it is not directed towards the acquisition of property. Section 51 (xxxi) of the Constitution does not apply to a law where an acquisition of property is[13]:
…a necessary or characteristic feature of the means which the law selects to achieve its objective and the means selected are appropriate and adapted to achieving an objective with power, not being solely or chiefly the acquisition of property…
[11] At [4] to [7] per Gleeson CJ
[12] At [6] per Gleeson CJ
[13] Mutual Pools & Staff Pty Ltd v Commonwealth (1994) 179 CLR 155 per Brennan J at 179 to 181
The principal object of the Assessment Act is to ensure that children receive a proper level of financial support from their parents[14]. As submitted on behalf of the Registrar, any acquisition of property is a necessary feature of the means the Assessment Act has selected to achieve the objective of ensuring parents provide an appropriate level of financial support for their children. In Mutual Pools[15], their Honours Justice Dawson and Toohey gave the Assessment Act as a clear example of a law that does not infringe s.51(xxxi).
[14] Child Support (Assessment) Act 1989 - section 4
[15] Mutual Pools & Staff Pty Ltd v Commonwealth (1994) 179 CLR 155 at 202
The appellant’s argument in relation to this ground therefore fails.
The assessments of the appellant’s earning capacity are constitutionally invalid in the absence of a properly conducted hearing with regard to the rules of evidence
Sections 29(1) and 98H(4) of the Assessment Act as they existed on
18 December 2000provide:
29 How decision is to be made
(1) Subject to this section, in determining whether an application for administrative assessment of child support complies with sections 24, 25 and 25A, the Registrar may act on the basis of the application and the documents accompanying the application, and is not required to conduct any inquiries or investigations into the matter.
98H Procedure for dealing with application
(4) Any hearing before the Registrar, and any inquiry or investigation carried out by the Registrar, is to be carried out as the Registrar thinks fit and the Registrar is not bound by any rules of evidence.
The appellant does not particularise his argument. To the extent the appellant alleges the process provided by the legislation is constitutionally invalid because of an alleged failure to accord natural justice and due process, the contention fails. Chapter III of the constitution does not contain a right of due process[16] and does not include a constitutional guarantee of procedural fairness in all cases[17].
[16] Thomas v Mowbray (2007) 233 CLR 307 at [111] (Gummow and Crennan JJ); Kruger v Commonwealth (1996) 190 CLR 1 at 61 (Dawson J)
[17] See cases cited in Hussain v Minister for Foreign Affairs (2008) 169 FCR 241 at [70] to [146]
The appellant’s challenge to the constitutional validity of sections of the Child Support (Assessment) Act 1989, as particularised in the s.78B Notice, therefore fails.
In oral submissions, Mr Potkonyak raised issues as to the constitutional validity of provisions of the Child Support (Registration and Collection) Act 1988, currently in force. They are not referred to in the s.78B Notice. In particular, as best I can make out, Mr Potkonyak refers to the provisions of that Act which relate to the hearing of reviews by the SSAT and the limitation on appeals to this Court from the SSAT to questions of law. I found his assertions confused. In any event, I am not persuaded he raises any issues not already addressed in relation to the Assessment Act. I find no merit in these arguments.
As I have found no merit in relation to the constitutional issues raised by the appellant, I will now give my reasons in relation to the substantive appeal.
Appeal from decision of the Social Security Appeals Tribunal
The appellant relies on an Amended Notice of Appeal (Child Support) filed on 23 May 2008. He appeals a decision of the SSAT dated 3 March 2008. The SSAT affirmed a decision of the Child Support Registrar not to grant the appellant an extension of time to lodge an objection to a decision of the Registrar of 18 December 2000.
I have already outlined the background facts.
In her letter to the appellant of 5 October 2007, the objections officer states that “the Child Support Agency must be satisfied that it is in the overall interests of justice to allow an extension of time in all the circumstances of the case.”[18] The officer sets out her brief reasons [19] which I summarise as follows:
a)
The appellant did not establish that he was unable to lodge the objection within the required time-frame and the delay was
7 years;
b)The appellant did not contact the Agency until June 2002 to advise he was appealing the 1997 and 2000 decisions through the Court. The Agency’s records revealed the appellant was employed in 2001. In regard to the appellant’s claim that he had not been contacted by the Senior Case Officer, the decision states that the appellant was not available for his scheduled telephone conference. The appellant did not provide evidence to establish a case for review of the decision of 18 December 2000;
c)Allowing an extension of time to object will prejudice the payee parent.
[18] At folio 9
[19] From folio 8 to 10
On 29 October 2007, the appellant lodged an appeal to the Social Security Appeals Tribunal [SSAT] seeking a merits review of the Registrar’s decision of 5 October 2007. The Tribunal heard the application on 18 February 2008, and the appellant appeared in person assisted by Mr F. The matter was adjourned until 3 March 2008 to obtain additional information from the Child Support Agency. The Tribunal decided on 3 March 2008 to affirm the decision of the Child Support Agency not to extend time for the appellant to lodge an objection to the Agency’s decision of 18 December 2000.
The appellant now appeals that decision under s.110B of the Registration Act. Section 110B provides that a party to a proceeding before the SSAT may appeal to a court having jurisdiction, on a question of law, from any decision of the Tribunal in that proceeding. This is not a review on the merits.
Reasons of the Social Security Appeals Tribunal
The Tribunal’s review powers are set out in the Registration Act at Division 5 of Part VIIA.
Section 103S provides:
If a person applies to the SSAT for a review of a decision under this Part, the SSAT must:
(a) affirm the decision; or
(b) set the decision aside and:
(i) substitute a new decision; or
(ii) send the matter back to the Registrar for reconsideration in accordance with any directions or recommendations of the SSAT.
Section 103T(1) provides:
…the SSAT…may…exercise all the powers and discretions that are conferred by this Act and the Assessment Act on the Registrar.
Section 103T(2) provides:
To avoid doubt, any limitation on the exercise of a power or discretion by the Registrar also limits the exercise of that power or discretion by the SSAT under this Part.
The legislation imposes limits on the exercise of the Tribunal’s powers.
I am satisfied that the Tribunal correctly identified the issue for its consideration as “whether it can allow Mr Laurie an extension of time to lodge an objection to a decision made by the Child Support Agency on 18 December 2000.”[20]
[20] At page 3 of the Tribunal’s reasons
The Tribunal set out the grounds relied on by the appellant at the SSAT hearing, and the documents provided by the appellant and by the Agency.
The Tribunal outlined the provisions of the legislation it intended to apply in determining the case. It correctly noted that the appellant lodged his application for an extension of time to lodge an objection, after 1 January 2007, when the SSAT was granted jurisdiction to review decisions of the Child Support Registrar.
a)Section 81 of the Child Support (Registration and Collection) Act 1988 requires a person to lodge an objection to a decision of the Registrar within 28 days after a notice of the decision is served on that person.
b)Section 82 provides that where the period for lodgement has expired, the person may send the objection to the Registrar (in writing) with an application requesting that the objection be treated as if it was lodged within the time period allowed.
c)Section 83 requires the Registrar to make a decision to either grant or refuse an application for such an extension of time and advise the decision in writing with reasons within 60 days. The person must be advised by the Registrar of the person’s right to seek a review by the Tribunal.
The appellant makes no complaint that the Registrar failed to take these statutory steps.
The Tribunal[21] set out the factors to be considered when considering whether or not an extension of time should be granted as follows:
[21] At paragraph 48 of the Tribunal’s reasons
a)The reason for the failure to lodge the appeal.
b)The length of delay in lodging the appeal.
c)The diligence shown by the Appellant in lodging the appeal after it came to his notice that there were circumstances justifying an appeal.
d)The nature of the decision below and the consequences of the decision on the appellant’s rights.
e)The adequacy of the information conveyed to the appellant at the time the decision was notified to him, both as to the reasons for the decision and of the appellant’s entitlement to appeal.
f)The extent of the appellant’s knowledge of the relevant statutory provisions.
g)The possible prejudice to the Respondent to the appeal.
The Tribunal refers to case law in which the principles to be applied in the exercise of the discretion have been addressed. In particular, the Tribunal refers to the principles summarised by his Honour Justice Wilcox in Hunter Valley Developments Pty Ltd v Cohen [22] as:
[22] (1984) 3 FCR 344
a)Prima facie, proceedings commenced outside the prescribed period will not be entertained. An extension of time will be granted, however, if it is proper to do so.
b)It is relevant whether the appellant rested on his rights or took action to make the decision-maker aware that the decision was being contested.
c)Any prejudice to the Respondent that would be caused by granting an extension of time is relevant.
d)The merits of the appeal are relevant.
e)Fairness of granting the extension of time as between the applicant and other persons in a like position is relevant and further that it must be fair and equitable in the circumstances.
The Tribunal then considered the evidence adduced by the appellant, including the appellant’s contention that the Registrar’s decision of
18 December 2000was based on incorrect information. The Tribunal found that the appellant had failed to provide any substantiating material to support this assertion, to assist the Tribunal to assess the merits of the appellant’s case. The Tribunal then applied the principles to the particular circumstances of the appellant’s case, including his stated reasons for failing to lodge an objection, the length of delay in lodging the objection and the prejudice to the payee parent if the extension were granted, and the merits of the appellant’s application. The Tribunal formed the view that it was neither proper nor fair and equitable for the appellant to be afforded the benefit of an extension of time to lodge an objection “in the absence of acceptable reasons or any evidence regarding merits.” [23]
[23] At paragraph 68 of the Tribunal’s Reasons
Social Security Appeals Tribunal decision
The Tribunal affirmed the decision of the Child Support Registrar of
5 October 2007.
Grounds of Appeal
The appellant filed an Amended Notice of Appeal on 23 May 2008 which lists 10 grounds of appeal. He did not file a further Amended Notice. The appellant signed his own written submissions[24] in support of his appeal in August 2008, though the words “A friend, Mr F, assisted the Appellant with the preparation of this document” appear type written at the conclusion of the document. There is no certification on the document to the effect that it was necessary for the document to be read to the appellant. As already noted, the appellant signed the document.
[24] Filed on 28 August 2008
It seems at the hearing the appellant’s solicitor abandoned the grounds of appeal set out in the Amended Notice of Appeal of May 2008.
Mr Potkonyak did not address the matters addressed in the appellant’s written submissions, nor did he address the grounds set out in the Amended Notice of Appeal. I found it difficult to follow the appellant’s case, as it seems did the solicitor for the Registrar. Mr Gouliaditis said[25]:
Your Honour, I am slowly at a loss because I am not sure how any of those arguments [concerning the constitutional issues] relate to any of the appeal points raised in the notice of appeal.
[25] At page 30 of the transcript of proceedings of 25 March 2009
I had explained to Mr Potkonyak at the time of hearing that I would hear his submissions in relation to the constitutional issues, and then in relation to further matters raised on the appeal from the SSAT decision.
At hearing, the appellant’s solicitor said, after making submissions in relation to the constitutional issues[26]:
[26] A page 28 of the transcript of proceedings of 25 March 2009
I… have nothing to argue there. My argument would be that the decision of the – the determination of the Registrar was invalid and there wouldn’t be even need for the appeal to the Tribunal at all…
…
the error of law would come back to the constitutional issue because the – what has been taken as facts – as evidence was not evidence presented in accordance with the law because accusations by somebody it was not evidence at all.
Mr Potkonyak then submitted that the appellant delayed in lodging an objection for this reason[27]:
[27] A paragraph 28 of the transcript of proceedings of 25 March 2009
…because he didn’t know what to object to. I wouldn’t know what to object to.
Inexplicably, this reason contradicts the position advanced by the appellant in his written submissions of August 2008 when the appellant says[28]:
Ms B has incorrectly and erroneously found that the main reason for the Appellant not making the objection was a deliberate plan not to do so.
[28] At page 7 of appellant’s written submissions filed on 28 August 2008
I find a lack of clarity and lack of consistency in the appellant’s position, but endeavour to address the grounds of appeal set out in the Amended Notice of Appeal. These grounds are not always consistent with the written submissions filed in August 2008.
An error of fact or law?
As already noted, s.110B of the Registration Act provides that a party to a proceeding before the SSAT may appeal to a court having jurisdiction, on a question of law, from any decision of the Tribunal in that proceeding. This is not a review on the merits. His Honour Federal Magistrate Halligan in LDME & JMA[29] comprehensively considered what is a question of law with reference to the authorities. His Honour said[30]:
…the basis and focus of a s 110B appeal is a question of law. The appeal is not one in which findings of fact per se can be called into question.
[29] LDME & JMA [2007] FMCAfam 712
[30] At paragraph 29
When a ground of appeal relies on an error of fact, it will be necessary for the appellant to establish that the finding, or findings of fact, are so unreasonable that no reasonable Tribunal member could have come to that decision, “but to a prove a case of that kind would require something overwhelming.” [31]
[31] Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 230
Ground 1 – Error of fact
The appellant contends that the Tribunal made “significant errors of fact in the member’s decision dated 3 March 2008”. [32]
[32] Ground 1 of the Amended Notice of Appeal filed on 23 May 2008
In particular, the appellant complains that the Tribunal failed to consider accurately the precise extent of the appellant’s literacy in the English language and that this would have had a significant effect on the appellant’s ability to lodge the objection to the Registrar’s decision of 18 December 2000. The appellant complains that the Tribunal underestimated the extent to which the appellant can read English.
In written submissions, the appellant goes well beyond the matters set out in Ground 1 of the Amended Notice of Appeal. He submits that because of his limited knowledge of English, he did not understand the objection process. The appellant then alleges that the Tribunal advised she would test the validity of this claim by obtaining a copy of the appellant’s response to the payee’s application for a change of assessment, and adjourned the review. The appellant complains that the Tribunal did not receive in the bundle of documents received from the Agency, a Response by other Party form, but because the appellant never received a copy of the Agency documents obtained after
18 February 2008, the appellant had no opportunity to challenge the fact the Response form had not been provided. The appellant assumes that had he been afforded that opportunity, the Tribunal would have allowed the review.
I find the appellant’s submission misconceived given he complains the Tribunal underestimated rather than overestimated his capacity to read English. I do not accept there is any basis for the appellant’s contention that the Tribunal’s statement as to the appellant’s level of literacy, if different from what was said by the appellant, had any bearing on the outcome of the Review.
Appeals lie only on questions of law. The appellant fails to explain any connection between this ground of appeal relied on, and a question of law, nor does he establish that the facts relied upon by the Tribunal were unreasonable[33].
[33] Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 230
The appellant does not disclose any error of law. This ground of appeal cannot succeed.
Grounds 2, 3 and 4 - Issues of natural justice
His Honour Chief Justice Gibbs in the High Court decision of Kioa v West said[34]:
The rules of natural justice are flexible, requiring fairness in all the circumstances, including the nature of the power exercised and the statutory provisions governing its exercise: Bread Manufacturers of N.S.W. v. Evans (1981) 56 ALJR 89, at pp 94, 101; 38 ALR 93, at pp 102, 117; National Companies and Securities Commission v. The News Corporation Ltd. (1984) 58 ALJR 308, at pp 314, 318; 52 ALR 417, at pp 427-428, 434.
[34] (1985) 159 CLR 550 at [11]
The appellant contends that the Tribunal failed to give the appellant the opportunity to respond to new evidence considered by the Tribunal after the hearing of the review on 18 February 2008. He implies that had he been given this opportunity, the Tribunal may have made a different decision.
The appellant in his affidavit sworn on 4 August 2008 deposes to the Tribunal member, Ms B advising him on 18 February 2008 that she intended to test the validity of claims he had made that he was not capable of making or writing an objection to the Agency’s decision of December 2000. The appellant claims that Ms B advised that she would obtain a copy of his response to the application for change of assessment made on 3 October 2000 and would adjourn the hearing for 2 weeks to enable her to obtain that copy. The appellant claims not to have received the documents from the Tribunal until approximately
10 weeks after the decision was made.
In his affidavit affirmed on 24 October 2008, Mr F, who was present with the appellant before the Tribunal on 18 February 2008, claims that Ms B advised at the end of the hearing that she would attempt to obtain a copy of any response by other party form from the Agency, “to test the veracity of the claim...made by Mr Laurie...that he was not capable of making a written objection to the decision.” Mr F said there was no mention made by Ms B of obtaining any other document or information. He alleges she said she would adjourn the hearing for
2 weeks and that her decision would be available approximately 1 to 2 weeks after that.
The appellant does not provide a transcript of the proceedings of
18 February 2008in these proceedings, despite his Application in a Case for the court to meet the costs of such transcript having been dismissed in August 2008. There is therefore no objective evidence before me as to what Ms B told the appellant.
In her affidavit sworn on 8 September 2008, the Tribunal member,
Ms B, deposes to contacting the Agency by telephone immediately after the hearing on 18 February 2008 to request additional information from the Agency. Ms B deposes to receiving that same day, from the Agency, 13 pages from Mr Laurie’s file and on the following day, a further 9 pages. On 19 February 2008, Ms B deposes to forwarding a copy of the documents by post to the appellant at his address. She says she did not fax the letter as no fax number was provided.
Ms B says[35]:
I checked the address several times as it is an unusual address and Mr Laurie had indicated during the course of his hearing that he had problems with receiving mail in the past.
[35] Affidavit sworn by Ms B on 8 September 2008 at paragraph 8
Ms B annexes an electronic copy of the letter sent to the appellant on
19 February 2008. In the letter, Ms B invited the appellant to provide any written response to her by 26 February 2008, “or the Tribunal will consider the matter and proceed to make a decision.”
Ms B did proceed to determine the matter on 3 March 2008, as advised in that letter. It is clear from the documents annexed to her affidavit that the Tribunal received the documents from the Agency on the dates she specified, and I am satisfied on the basis of her affidavit, that she forwarded the documents by post to the appellant as she deposed.
I accept Ms B’s evidence. The Tribunal obtained extracts from the appellant’s Agency file relating to communications between the appellant and the Agency both before and after the original decision was made on 18 December 2000, and made certain factual findings as to the appellant’s awareness of the December 2000 decision and his further review rights[36]. The Tribunal discussion of the evidence is set out at paragraphs 36 to 43 of its Reasons.
[36] At paragraph 43 of the SSAT Reasons
The appellant contends he was denied the opportunity to respond to:
a)The file notes of the Agency dated December 2000 referred in paragraph 37 of the Tribunal’s Reasons; and
b)The whole of the file note of the Agency dated 28 June 2002 referred to in paragraph 40 of the Tribunal’s Reasons. He acknowledges having had access to the first 11 lines.
The appellant refers to a file note recording conversations between the Agency and the appellant in December 2000, prior to the change of assessment hearing. The appellant contends that had he been aware of this file note, he would have contested its contents at the hearing. It is not clear how the appellant would have done so. The Tribunal is entitled to rely on the contemporaneous case notes of the Agency, and I find the Tribunal’s finding that the appellant was aware of the date of the hearing a reasonable one on the evidence. Further, the Part 6A decision of Senior Case Officer S[37] confirms that the appellant (then the respondent) participated in the hearing by way of written submissions, which are referred to in the Part 6A decision.
[37] SSAT documents – Folio 42 to 45
The appellant further alleges that he did not have the opportunity to respond to the whole of the Agency’s case note dated 28 June 2002. This case note is set out at paragraph 40 of the Tribunal’s decision. The appellant submits[38] that had he had access to the whole of this file note (not just the first 11 lines) prior to the Tribunal determining the review:
…the appellant would have been able to provide evidence that the information provided by the payee was a complete fabrication of the facts. This is evidenced by 2 subsequent failed court cases instigated by the CSA and referred to in the Appellant’s Application to the SSAT.
[38] At page 8 of the written submissions filed on 28 August 2008
I am not satisfied this follows. The Tribunal had regard to the appellant’s testimony that there had been two completely unsuccessful court cases conducted on behalf of the Agency. The Tribunal however, finds[39] that it cannot assess the merit of the appellant’s objection simply on the basis of a verbal assertion. The Tribunal was on notice of the unsuccessful court proceedings. The Tribunal does not rely for its findings on the payee’s assertions as set out in the file note of 28 June 2002. In fact, that part of the file note is not taken into account at all in the Tribunal’s findings and determination, except to the extent that the file note verifies the appellant’s communications with the Agency at different times. In relation to the merit of the appellant’s objection, the Tribunal’s finding was that the appellant failed to provide evidence, information or documents sufficient to dispel the original decision.
[39] At paragraph 55 of the SSAT Reasons
The appellant has not shown that the Tribunal’s reference to documents received from the Agency after 18 February 2008 resulted in any procedural unfairness to the appellant. These grounds of appeal must therefore fail.
Ground 5 – Error of fact
The appellant disputes a statement made in the Tribunal decision to the effect that the appellant had said he was not certain whether relevant financial documents existed to verify his income and ability to earn at that time. The appellant submits he said the opposite and this was “a significant error of fact”.[40]
[40] Ground 5 of the Amended Notice of Appeal (Child Support) field 23 May 2008
The appellant makes a bold assertion. He adduces no verifying evidence to establish this contention. However, I am not satisfied this matters because, as acknowledged by the appellant under this ground of appeal, the ground does not disclose any error of law.
This ground of appeal must fail.
Ground 6 – Error of fact
The appellant alleges that the Tribunal made an error of fact in relation to its finding as to the nature of the appellant’s daughters’ business.
I accept the submission on behalf of the Registrar that this ground again seeks to disturb factual findings, which is not permitted in an appeal of this kind.
This ground does not disclose an error of law and therefore fails.
Ground 7 – Failure to consider certain information
The appellant alleges that the Tribunal failed to take into account certain documents, which he claims “clearly show” that he has no “financial involvement” in a particular property and a particular company. [41]
[41] Ground 7 of the Amended Notice of Appeal (Child Support) field 23 May 2008
I agree with the submission on behalf of the Registrar that this ground is a further challenge by the appellant to the findings of the Tribunal. This is a finding that the appellant provided no financial evidence, information or documents to contradict the evidence of the appellant’s financial circumstances on which the original decision of the Registrar was based. At paragraph 55, the Tribunal states:
…given the significant allegations regarding his earning capacity and involvement in his daughter’s restaurant he would be required to provide extensive documentation including but not limited to asset inventories, title documents, personal bank accounts, business bank accounts, cheque accounts, profit and loss statements, trust documents, trust deeds, insurance policies and loan statements. No information has been provided by Mr Laurie which would assist the Tribunal in assessing the merits of the case. A verbal assertion is not adequate to allow an extension of time six years after the date of the original decision.
The appellant does not satisfy me that this was not a reasonable finding open to the Tribunal on the evidence. The Tribunal does not say the appellant provided no documents, but that the appellant provided no documents which would assist the Tribunal in assessing the merits of the case.
I am not satisfied this ground of appeal discloses an error of law, and it therefore fails.
Ground 8 – Failure to give sufficient weight to certain facts
The appellant claims the Tribunal failed to give enough weight to the fact that the appellant has arrears (including penalties) of $161,870.40 and does not have (nor has ever had) any means of paying the alleged arrears.
I have difficulty understanding this ground as a basis for appeal. It is not explained by submissions. I find no error of law disclosed.
Grounds 9 and 10
The appellant complains that the Tribunal failed to note the unfairness of the Child Support Agency’s position that, “while the Agency does not believe that the appellant’s income will change dramatically in the future, the CSA does believe that future investigations may reveal assets which could be used in litigation to eventually recover the debt”. [42]
[42] Ground 9 of the Amended Notice of Appeal (Child Support) field 23 May 2008
Further, the appellant contends that the Tribunal erred in failing to appreciate that the child support assessment made on 18 December 2000 was based on earning capacity, not on assets.
I agree with the submission on behalf of the Registrar that it is difficult to decipher how these matters are relevant to the proceedings. In any event, no error of law is revealed in either of these grounds and they must therefore fail.
Determination
I have decided that the Tribunal’s decision will be affirmed and the appeal dismissed. As the Child Support Registrar has provided submissions on the question of costs, to be considered in the event of the determination I have made, I will list the costs issue for hearing. In relation to the Second Respondent, costs were reserved on
25 November 2008, and I will give the Second Respondent the opportunity to apply for costs.
I certify that the preceding one hundred and eighteen (118) paragraphs are a true copy of the reasons for judgment of Sexton FM
Associate: Skye Owen
Date: 10 July 2009
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