Lingard and Child Support Registrar (Child support)

[2019] AATA 5130

Lingard and Child Support Registrar (Child support) [2019] AATA 5130 (24 October 2019)

DIVISION:Social Services & Child Support Division

EXTENSION APPLICATION

NUMBER:2019/SC017140

APPLICANT:  Mr Lingard

OTHER PARTY:  Child Support Registrar

DATE DECISION MADE:               24 October 2019

APPLICATION:

An extension application made on 12 August 2019 asking the AAT to consider the application for AAT first review of a decision of the Child Support Registrar on 10 January 2019 despite the period for applying for review having ended.

DECISION:

The extension application is refused.

CATCHWORDS

CHILD SUPPORT – application for extension of time - no satisfactory explanation for the delay - no merit - extension of time refused

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 16(2AB)-16(2AC) of the Child Support (Registration and Collection) Act 1988.

STATEMENT OF REASONS

1. This is an application by Mr Lingard for an extension of time to apply to the Tribunal against a decision of the Child Support Agency (CSA). The CSA originally accepted an income estimate election from Mr Lingard made on 5 October 2018; on the other parent’s ([Ms A]) objection, it was decided the income election was to be refused as Mr Lingard had failed to disclose rental property losses. 

2. There is a time limit to apply for “AAT first review”: see section 90 of the Child Support (Registration and Collection) Act 1988 and paragraph 29(1)(d) of the Administrative Appeals Tribunal Act 1975. Mr Lingard was required to make his application within 28 days of receiving the decision of 10 January 2019 electronically.

3. Mr Lingard made an application for AAT first review on 12 August 2019, well outside the 28-day period. The Tribunal understands Mr Lingard had thought at the time he had no basis to challenge the decision, and elected not to take the matter further.

4. The established cases indicate that the starting position is the prima facie rule that proceedings commenced outside a statutory period will not be entertained (Lucic v Nolan (1982) 45 ALR 411 at [416]). However, the primary concern “is to do that which will enable justice to be done between the parties” (see Martinsen v Secretary, Department of Family & Community Services [2004] FCA 297 per Spender J). Spender J quoted McHugh J in Gallo v Dawson (1990) 64 ALJR 459 as follows:

   In order to determine whether the rules [imposing time limits] will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time ...

   When the application is for an extension of time …it is always necessary to consider the prospects of the applicant succeeding in the appeal …

5. In line with Wilcox J’s survey of cases in Hunter Valley Developments P/L v Cohen (1984) 3 FCR 344, the Tribunal proposes to consider the matters identified in Gallo v Dawson under the following headings:

   ·the explanation for the delay;

   ·the merits of the substantial application;

   ·any prejudice to the other party, including any prejudice in defending the proceedings occasioned by the delay; and

   ·any public interest considerations that might flow from a successful application including “the unsettling of other people … or of established practices”.

Explanation for the delay

1. The absence of a reasonable explanation for delay will ordinarily be fatal to an application for an extension of time.

2. Mr Lingard was clearly advised of his objection rights. He elected at the time not to take the matter any further. He does not have a reasonable explanation for the delay; this weighs very heavily against granting an extension.

Merits of the objection

1. There is no point to granting an extension of time if an application is unlikely to succeed.

2. In making the estimate, Mr Lingard failed to disclose his rental property losses. The CSA was right to determine it could not be accepted. An application, if permitted to proceed, would appear to have no prospects for success.

Potential prejudice to the other party

10.The Tribunal is particularly concerned about potential prejudice to the other party. [Ms A] was entitled to rely and budget upon the decision to support the children in the absence of an objection within the 28-day period. The Tribunal observes the delay here is not short; this factor also weighs heavily against granting an extension.

Public interest considerations

11.Parliament has seen fit to set a 28-day time limit for the lodgement of objections so that parents (and the CSA) can act with certainty as to the outcome when the objection period has elapsed. The public has an interest in reviews of decisions made by the CSA being performed in a timely fashion and in a manner that ensures all applicants are treated fairly and equally. Accordingly, an extension of the time for objection is not to be automatically granted.

Conclusion

12.Mr Lingard does not have a reasonable explanation for what is a lengthy delay given he was clearly informed in writing of his objection rights. The lack of merit, and prejudice to the other party, also weigh heavily against an extension being granted.  

13.Accordingly, the Tribunal considers the interests of justice are clearly best served by refusing an extension of time.