CHILD SUPPORT – Appeal from decision of SSAT – nature of proceedings – need to identify question of law raised by appeal – connection between question of law and orders sought – discerning error of law from tribunal’s reasons – relief discretionary.
CHILD SUPPORT – Appeal from decision of SSAT – form of Notice of Appeal – requirement to specify “Grounds of appeal” – what “Grounds of appeal” should address.
CHILD SUPPORT – Appeal from decision of SSAT – power of court to make findings of fact and to admit evidence – whether court should hear and determine matter when SSAT through legal error gave no consideration to merits of review application.
CHILD SUPPORT – Appeal from decision of SSAT – statutory time limit for appeal as fixed by rules of court –hiatus in rules fixing time limit – appealable decision made during hiatus – rule subsequently made fixing time limit – rule having effect of rendering any appeal by appellant thereafter out of time – appellant subsequently appealing – whether rule fixing time limit applies to appellant.
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
LDME & JMA (SSAT Appeal) [2007] FMCAfam 712
Case
[2007] FMCAfam 712
Decision Date
CaseChat Overview and Summary
The case LDME & JMA (SSAT Appeal) involves a dispute regarding the application of the New Formula Act's amendments to pending matters under the new internal objection procedures and the new SSAT merits review regime. The matter was heard and decided by the relevant court. The primary issue before the court was determining whether and how the new provisions in Part 2 of Schedule 3 of the New Formula Act applied to decisions made by the Registrar under the Registration and Collection Act and the Assessment Act before and after the commencement of the new provisions on 1 January 2007.
The court focused on Item 77 of the New Formula Act, which outlines the application of the new internal review provisions to decisions made by the Registrar. The court examined whether the mother's objection, which was pending at the commencement of the new provisions, was treated as an objection under the new Part VII of the Registration Act. The decision by the Registrar on the objection, made after the commencement of the new provisions, was also considered under s.87(1) of the Registration Act. The court concluded that the SSAT review provisions applied to the decision made by the Registrar after the commencement of the new provisions.
In its reasoning, the court referred to previous cases such as Australian Telecommunications Corporation v Lambroglou and Birdseye v Australian Securities and Investment Commission, which provided guidance on the requirements for setting out the "Grounds of appeal" in a section 110B Notice of Appeal. The court noted that the appeal was focused on a question of law, and the Grounds of Appeal should enable the respondent and the Court to identify the questions of law sought to be raised by the appellant and the reasons why a finding for the appellant on those questions should result in the orders sought being made.
The court allowed the mother's appeal against the decision of the Social Security Appeals Tribunal (the Tribunal) made on 9 May 2007. The decision of the Tribunal was set aside, and the case was remitted to the Tribunal to be heard and decided again.
Orders
Orders of the court
1.
The mother's appeal against the decision of the Social Security Appeals Tribunal (the Tribunal) made on 9 May 2007, is allowed.
2.
The decision of the Tribunal is set aside and the case is remitted to the Tribunal to be heard and decided again.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Part 2 of Schedule 3 of the New Formula Act contains the application provisions in relation to the amendments it effected. That is, whether and if so how pending matters are caught by the new internal objection procedures and the new SSAT merits review regime is to be determined by reference to Part 2 of this Schedule. Relevantly to this case, Item 77(1) – (5) provide:77 Application—review of decisionsDecisions of the Registrar—internal review pending or not yet started at commencement(1) Subject to subitem (3), Part VII (internal review) of the Registration and Collection Act (as amended by this Schedule) applies in relation to a decision made by the Registrar under that Act or the Assessment Act before or after the commencement of this item.Note: Part VII of the Registration and Collection Act (as amended by this Schedule) also applies if a proceeding for internal review was pending under that Part or Part 6B of the Assessment Act immediately before the commencement of this item (see subitem (4)).(2) Part VIIA (SSAT review) of the Registration and Collection Act (as inserted by this Schedule) applies in relation to a decision made by the Registrar under subsection 83(1) or 87(1) of the Registration and Collection Act after the commencement of this item.Decisions of the Registrar—internal review completed before commencement(3) If, before the commencement of this item:(a) a person objected under:(i) Part 6B of the Assessment Act; or(ii) Part VII of the Registration and Collection Act;to a decision (however described) of the Registrar (the original decision); and(b) the Registrar made a decision (the objection decision) on the objection under:(i) subsection 98ZC(1) of the Assessment Act; or(ii) subsection 87(1) or 98(1) of the Registration and Collection Act;those Acts, as in force immediately before that commencement, continue to apply in relation to the original decision and the objection decision.Pending proceedings—internal reviews(4) A proceeding before the Registrar that, immediately before the commencement of this item, was pending under:(a) Part 6B of the Assessment Act; or(b) Part VII of the Registration and Collection Act;is taken, at that commencement, to be pending under Part VII of the Registration and Collection Act as amended by this Schedule.(5) The Assessment Act and the Registration and Collection Act, as in force immediately before the commencement of this item, continue to apply in relation to a decision made by the Registrar before that commencement under:(a) subsection 98ZE(1) of the Assessment Act; or(b) subsection 91(1) or 101(1) of the Registration and Collection Act. Schedule 3 of the New Formula Act commenced on 1 January 2007. It follows from these provisions that-a)Under Item 77(4), the mother's objection under Part 6B of the Assessment Act, pending at 1 January 2007, was thereafter treated as an objection under the new Part VII of the Registration Act;b)The decision by the Registrar on the mother's objection, made after 1 January 2007, was therefore a decision under s.87(1) of the Registration Act;c)Under Item 77(2), the SSAT review provisions apply to the decision.
Ratio Decidendi
Legal Principle Established
However, in my view, what was said of s.44 and O.53 r.3(2)(d) in Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 524, cited with approval in Birdseye v Australian Securities and Investment Commission [2003] FCAFC 232 at [13] per Branson and Stone JJ, (2003) 76 ALD 321, 38 AAR 55, is relevant in discerning what the requirement to set out the “Grounds of appeal” in a s.110B Notice of Appeal entails:“Because the appeal under s.44 of the AAT Act is confined to a question of law it would be inappropriate for the Rules to specify as part of the contents of a notice of appeal ‘grounds’ which would be appropriate if the appeal could be brought against findings of fact as well as against what are said to be errors of law; cp O.52 r.13(2)(b) which requires a notice of appeal of that wider kind to state ‘briefly, but specifically, the grounds relied upon in support of the appeal’. The distinction is recognised by O.53 r.3(2)(d) which requires the notice of appeal under the AAT Act to state only ‘the grounds relied upon in support of the order sought’. In the present case the order sought is that ‘the Decision of the Tribunal be set aside’. Grounds in support of that order would properly assume the resolution of the question of law in favour of the applicant and indicate in a summary way the reasons why that resolution requires the decision of the AAT to be set aside. Of necessity, properly drawn grounds of that kind could not elucidate the question of law.” In explaining the connection between the question of law, the grounds relied on and the orders sought, Branson and Stone JJ said in Birdseye (at [18]):“18. In our view, O 53 r 3(2) discloses an intention that a question of law to be raised on an appeal from the Tribunal should be stated with precision as a pure question of law. It is in the specification of the grounds relied upon in support of the orders sought that, in our view, one should expect to find the links between the question of law, the circumstances of the particular case and the orders sought on the appeal.” Despite the focus in these passages on provisions of the Federal Court Rules that are not replicated in this Court’s rules, the underlying reasoning is nonetheless relevant, in my view, to a section 110B appeal. The basis and focus of a section 110B appeal is a question of law. The appeal is not one in which findings of fact per se can be called into question (Comcare v Etheridge [2006] FCAFC 27 at [14] per Branson J, with whom Spender and Nicholson JJ agreed). The Grounds of Appeal called for in the Notice of Appeal in this Court assume the provisions of s.110B. Thus, in my view the Grounds of Appeal to be set out in the Notice of Appeal should ideally be expressed in a way that enables the respondent and the Court to identify the question or questions of law sought to be raised by the appellant and the reasons why a finding for the appellant on that question or those questions should result in the orders sought in the Notice of Appeal being made.