LKWV and Child Support Registrar (Child support second review)

[2018] AATA 2296

LKWV and Child Support Registrar (Child support second review) [2018] AATA 2296 (18 July 2018)

Division:GENERAL DIVISION

File Number:           2018/1171

Re:LKWV

APPLICANT

AndChild Support Registrar

RESPONDENT

DECISION

Tribunal:Member S Burford

Date:18 July 2018

Place:Perth

The Tribunal refuses to grant the Applicant’s application for an extension of time, pursuant to s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth), to lodge an application for review of the AAT1 decision of 26 September 2017.

.....[sgd]...................................................................

Member S Burford

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.

CATCHWORDS

Extension of Time – explanation for delay – length of the delay significant – applicant’s awareness of appeal rights – prospects of success – poor prospects of success – extension of time application refused

LEGISLATION

Acts Interpretation Act 1901 (Cth) – s 28A

Administrative Appeals Tribunal Act 1975 (Cth) – s 29(1)(d), s 29(2), s 29(7)

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Child Support (Registration and Collection) Act 1988 (Cth) – s 90, s 92(3), Part VIIA Division 2

Child Support (Assessment) Act 1989 (Cth)

Evidence Act 1995 (Cth) – s 160(1)

CASES

Brown v Federal Commissioner of Taxation [1999] FCA 563

Comcare v A'Hearn (1993) 45 FCR 441

Dix v Crimes Compensation Tribunal [1993] 1 VR 297

Doyle v Chief of Staff (1982) 42 ALR 283

Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344

Lucic v Nolan (1982) 45 ALR 411

Minister for Health and Aged Care v Pharmacia and Upjohn Pty Ltd (2001) 65 ALD 76)

Phillips v Australian Girls’ Choir [2001] FMCA 109

Ralkon v Aboriginal Development Commission (1982) 43 ALR 535

Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309

Re Veronica Lesley Johnson and Commonwealth of Australia: Commission of the Safety, Rehabilitation and Compensation of Commonwealth Employees [1990] AATA 1

Wedesweiller v Cole (1983) 47 ALR 528

Wu v University of Western Sydney [2011] FCA 1143

Zizza v Federal Commissioner of Taxation [1999] FCA 848

REASONS FOR DECISION

Member S Burford

18 July 2018

THE APPLICATION

1. This is an application for an extension of time to make an application for review of a decision made by the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1) on 26 September 2017.

   EVIDENCE

2. The following material was before the Tribunal:

   ·the Applicant’s application for extension of time received by the Tribunal on 21 March 2018, including attached written submissions by the Applicant (the Application for Extension of Time) (Exhibit A1);

   ·the Applicant’s written submissions dated 27 February 2018 and received by the Tribunal on 12 March 2018 (Exhibit A2);

   ·the Applicant’s application for second review of the decision of AAT1 received by the Tribunal on 12 March 2018, including attachments (the Application for Second Review) (Exhibit A3);

   ·the decision and reasons for decision of the AAT1 on the Applicant’s application for extension of time dated 26 September 2017 (the extension decision);

   ·additional material submitted by the applicant on 28 May 2018, including a written statement by the applicant dated 28 July 2017 (the Applicant’s Supplementary Written Submissions);

   ·the Respondent’s written submissions on the application for an extension of time received by the Tribunal on 5 April 2018, including Annexures A – F (the Respondent’s Written Submissions) (Exhibit R1); and

   ·the Respondent’s supplementary written submissions on the application for an extension of time received by the Tribunal on 25 May 2018.  

3. The application for the extension of time was heard in Perth on 11 May 2018. The hearing was conducted via telephone. The Applicant represented himself. The Respondent was represented at the hearing by Ms C Inglis, of the Department of Human Services.

4. Oral submissions were made by both parties. The Applicant also answered questions put to him by the Tribunal to clarify his position on submissions made by the Respondent and to confirm his understanding of the Respondent’s submissions.

5. Following the hearing, the Tribunal granted the Applicant a further seven days to make submissions and provide evidence in support of his application. The Respondent was granted time to respond to any additional submissions made by the Applicant. Additional material was received by the Tribunal from the Applicant on 28 May 2018.

6. The Tribunal has reviewed all of the material before it. The Tribunal is satisfied that all relevant evidence was before it and that both parties were provided an opportunity to address the evidence and the matters in issue, either orally or in writing.

   BACKGROUND

7. The Applicant and his previous partner have a child together.

8. On 2 September 2016 the Child Support Registrar allowed an objection to a change of assessment decision made on 9 June 2016 (the objection decision). The objection decision had the effect of reducing the rate of child support and reducing the Applicant’s child-support debt but not to the full extent requested by the Applicant.

9. On 16 August 2017 the Tribunal received an application for an extension of time to apply for review of the objection decision.

10. On 26 September 2017 the AAT1 refused an application for an extension of time (the extension decision).

11. The application was refused on the basis that:

    [The Applicant] did not provide a satisfactory explanation for the extensive delay in applying for review and rested on his rights. There would also be some prejudice to [the Applicant’s former partner] should [the Applicant] be successful in his application. Although his application has some merit, on balance, the Tribunal finds it would not be appropriate to grant an extension of time.

12. On 4 October 2017 the AAT1 sent the Applicant a notice of the extension decision by email and by post. The notice was sent to the incorrect email address. The notice was sent to the correct postal address provided by the Applicant on the AAT1 application for an extension of time.

13. The application for which an extension of time is sought now is for review of the extension decision by the AAT1. 

    RELEVANT LEGAL PRINCIPLES

14. The statutory provisions relevant to that review are contained in the Child Support (Registration and Collection) Act 1988 (Cth) (the CSRC Act) and the Child Support (Assessment) Act 1989 (Cth) (the Assessment Act).

15. An application for review of a decision must generally be lodged with the Tribunal within 28 days of the applicant receiving notice of the decision: s 29(1)(d) and s 29(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). However, s 29(7) of the AAT Act provides that:

    The Tribunal may, upon application in writing by a person, extend the time for making by that person of an application to the Tribunal for a review of the decision… if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.

16. While the AAT Act does not set out factors to be considered by the Tribunal in determining what is “reasonable in all the circumstances”, the relevant principles have been judicially considered.

17. In Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 (Hunter Valley Developments), the Federal Court set out a series of principles that might be relevant under similar provisions under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJRA) (at 348-50) when considering an application for an extension of time. These principles have been applied and expressed by the courts with some variations and modifications, however the central principles are consistent in the case law and provide useful guidance: see for example Brown v Federal Commissioner of Taxation [1999] FCA 563 (Brown); Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309; Wu v University of Western Sydney [2011] FCA 1143 and the cases cited below.

18. In Hunter Valley Developments, Wilcox J pointed out that “…the ‘prescribed period’ of twenty-eight days is not to be ignored… Indeed, it is the prima facie rule that proceedings commenced outside the period will not be entertained…” (at 348). In considering whether to exercise discretion to depart from this prima facie rule the authorities make it clear that a range of considerations must be taken into account. As Wilcox J noted in Hunter Valley Developments, the principles are “…to guide, not in any exhaustive manner, the exercise of the court’s discretion” (at 348).

19. In Phillips v Australian Girls’ Choir [2001] FMCA 109, McInnis FM provided a slightly amended version of the principles outlined by Wilcox J to take into account modifications made by other courts in considering the Hunter ValleyDevelopments principles as follows:

    1.There is no onus of proof upon an applicant for extension of time though an application has to be made. Special circumstances need not be shown, but the court will not grant the application unless positively satisfied it is proper to do so. The “prescribed period” of 28 days is not to be ignored (Ralkon v Aboriginal Development Commission (1982) 43 ALR 535 at 550).

    2.It is a prima facie rule that the proceedings commenced outside the prescribed period will not be entertained (Lucic v Nolan (1982) 45 ALR 411 at 416). It is not a pre-condition for success in an application for extension of time that an acceptable explanation for delay must be given. It is to be expected that such an explanation will normally be given as a relevant matter to be considered, even though there is no rule that such an explanation is an essential pre-condition (Comcare v A'Hearn (1993) 45 FCR 441 and Dix v Client [sic] Compensation Tribunal (1993) 1 VR 297 at 302).

    3.Action taken by the applicant other than by making an application to the court is relevant in assessing the adequacy of the explanation for the delay. It is relevant to consider whether the applicant has rested on his rights and whether the respondent was entitled to regard the claim as being finalised. (See Doyle v Chief of Staff (1982) 42 ALR 283 at 287).

    4.Any prejudice to the respondent, including any prejudice in defending the proceeding occasioned by the delay, is a material factor militating against the grant of an extension. (See Doyle at p 287).

    5.The mere absence of prejudice is not enough to justify the grant of an extension. (See Lucic at p 416).

    6.The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted. (See Lucic at p 417)

    7.Considerations of fairness as between the applicant and other persons otherwise in a like position are relevant to the manner of exercise of the court's discretion (Wedesweiller v Cole (1983) 47 ALR 528).

20. While the principles outlined above provide general guidance each case must be considered according to its own circumstances. In Brown, Hill J stated, in the taxation context (although this is still applicable to the general exercise of the Tribunal’s discretion), that the Tribunal should be “…guided by what the justice of the case requires” (at [59]). In determining the question of an extension of time, the Tribunal should weigh together all relevant factors: Zizza v Federal Commissioner of Taxation [1999] FCA 848.

    THE ISSUE

21. The issue before the Tribunal is whether the Applicant should be given leave for an extension of time pursuant to s 29(7) of the AAT Act to make his application to the Tribunal for a substantive review of the extension decision made by the AAT1 on 26 September 2017.

22. The Applicant lodged his application for review of the extension decision with the Tribunal on 12 March 2018.  He lodged his application for an extension of time on 21 March 2018.

23. The time for making the application was 28 days from “… the day on which a document setting out the terms of the decision is given to the applicant” (s 29(2)(a) of the AAT Act).

    CONSIDERATION

24. In determining whether an extension of time should be granted in this case, the Tribunal finds that, in light of the relevant jurisprudence and using the principles articulated in the case law as a guide, the relevant factors the Tribunal should consider in exercising its discretion to depart from the prima facie rule that proceedings commenced outside the prescribed period will not be entertained, include:

    ·the length of delay, any explanation for the delay and whether that explanation is satisfactory;

    ·whether the Applicant was aware of his appeal rights and whether he rested on those rights;

    ·any prejudice to the Respondent or the general public arising from an extension of time; and

    ·the merits or prospects of success of the substantive application (in this case the  review of the extension decision of the AAT1).

    Length of delay

25. An issue arises in this case as to when the extension decision was dispatched to the Applicant. The extension decision was sent by mail to the Applicant’s registered postal address on 4 October 2017. The Applicant contends that:

    The refusal letter was dated 26/9/17. However I have only just received the letter February 2018!!  When I first contacted the office in December 2017 to determine if a decision or if my appeal was reviewed I was advised it was sent out. Confirmed to the incorrect address. It took from December-February for me to get the decision. I made a lot of phone calls to the office to get it finally sent to the correct address. I need an extension as I am disputing finances…

26. The AAT1 extension decision was also emailed to the Applicant on 4 October 2017. The email address was missing one letter from the email address registered for the Applicant on his extension of time application. However, the AAT1 extension decision was also sent to the Applicant by mail to an address which matches that provided on the Application for Extension of Time (AAT1), filed 16 August 2017 (Respondent’s Submissions, Exhibit R1, Annexure B). 

27. The Applicant confirmed at the hearing that he had not maintained up-to-date contact details with the Tribunal. He submitted that he moved a lot and was concerned about providing his residential address to the Tribunal for safety reasons. 

28. The Respondent submits that the AAT1 extension decision was dispatched to the Applicant on 4 October 2017 consistent with subsection 92(3) of the CSRC Act and section 28A of the Acts Interpretation Act 1901 (Cth). The Respondent submits that the ordinary course of post is usually taken to have been the fourth working day after the letter is posted: Evidence Act 1995 (Cth), s 160(1). In the ordinary course of the post the Applicant would have received the decision on or around 10 October 2017.

29. The Tribunal finds that the Applicant is taken to have received the decision on 10 October 2017. The Applicant was accordingly required to file an application for review by 7 November 2017; AAT Act, s 29(2). The Applicant did not file an application for review until 12 March 2018, 124 days late.

30. In relation to the issue of the length of the delay in making the application the Respondent submitted that the filing of the application 124 days out of time was “significant” (Respondent’s Submissions, paragraph 20, Exhibit R1).

31. The Tribunal finds the length of the delay of 124 days was significant given the 28 day time limit for filing an application and weighs against an extension of time being granted.

    Explanation for the delay and awareness of appeal rights

32. The Applicant’s application for an extension of time indicated that his reason for not applying within the time limit was that he only received the letter in February 2018.  At the hearing he conceded that he had moved a lot and had not maintained up-to-date postal contact details with the Tribunal. He submitted this was for safety reasons as he had previously suffered a home invasion in July 2017. 

33. The Applicant filed a change of address form with the Tribunal on 5 February 2018 (Respondent’s Submissions, Annexure E, Exhibit R1).

34. The Respondent submits that (Respondent’s Submissions, paragraph 22, Exhibit R1):

    The AAT have confirmed that the notice sent by email on 4 October 2017 was sent to the incorrect email address. However the notice sent by post was sent to the address listed on the Applicant’s application for review… The [Respondent] therefore contends that section 160 of the Evidence Act 1995 operates and it is presumed that the notice was received at the specified address on 10 October 2017. Relevantly, the Applicant did not contact the AAT to advise of a change in his address until 2 February 2018.

35. When questioned about the reason for the delay in making the application at the hearing, the Applicant maintained that he moved a lot and had contacted the Tribunal in December 2017 to inquire about the outcome of his appeal. He said he provided alternate contact details several times on the telephone to the Tribunal. He submitted that he only received the decision at his new address in February 2018.

36. In written submissions the Applicant stated (Exhibit A2, page 2 of written submissions):

    …If I did miss any cut off periods it’s because of the hardship and stress of other situation’s (sic) going on and also due to the fact I have not had a welcoming attitude from CSA.

37. At the hearing the Applicant submitted that he was also delayed in filing his application due to the ongoing effects of suffering a home invasion during which he was injured in July 2017. It was not clear on this evidence whether he was claiming these events caused the delay in filing the AAT1 application or the application for review of the AAT1 extension decision. Accordingly the Tribunal has considered the material in the full context of the application. At the hearing there was no material before the Tribunal relating to the home invasion or any associated medical conditions suffered by the Applicant.

38. The Applicant was granted leave to file further evidence or make submissions in relation to the application for extension of time by 18 May 2018.  He submitted material on 28 May 2018. He submitted a handwritten statement, an abridged incident report for criminal injuries compensation, an ambulance invoice and a hospital emergency medicine summary and invoice receipt. He also submitted a copy of a “Centrelink Medical Certificate” dated 6 February 2018 which indicated a diagnosis of temporary “Anxiety/PTSD”. As this material was submitted after the time granted, and after the Respondent had submitted supplementary submissions in compliance with the Tribunal’s directions, the Tribunal is unable to give it significant weight.

39. The Respondent submitted that the Applicant’s claim in relation to the home invasion did not explain the lengthy delay in filing the application for review to the AAT1 and as such did not improve the prospects of success for the substantive matter (dealt with below) and on that basis did not assist the Applicant. The Tribunal notes these submissions were made without the Respondent having the benefit of seeing the material which was only submitted later.

40. In relation to the Applicant’s knowledge of his appeal rights the Respondent submitted that the notice of decision sent to the Applicant by the AAT1 includes reference to the Applicant’s right of appeal to the Tribunal. As the Applicant claims not to have received the notification until after the period for filing an appeal had passed, he says he was not aware of his rights of appeal or of the time limit which applied for filing an appeal. 

1. The Tribunal is satisfied that, while the Applicant would not have seen the notification regarding his appeal rights until he received the decision, in all the circumstances the Applicant was made aware of his rights. Further the Tribunal was satisfied that the Applicant was aware that time limits for review applications applied. 

2. While the Tribunal notes that the original decision was sent to the incorrect email address the Tribunal finds it was sent to the correct mailing address on the file. Accordingly, the Tribunal finds any delay in the Applicant receiving the extension decision by post was caused by the Applicant’s failure to maintain correct contact details with the Tribunal. The explanation offered by the Applicant for failing to maintain contact details was that he was concerned about his safety.  He also claimed he was busy completing tax returns.

3. The Tribunal finds that the Applicant failed to offer an adequate explanation for the delay in filing the application for review. However, in light of the circumstances surrounding the dispatch of the decision and the Applicant’s movements at the time the Tribunal places less weight on this element.

   Prejudice to the Respondent or the General Public

4. Consideration must be given to whether an extension of time in the circumstances would be of prejudice to the wider public by disturbing the established practices of the Tribunal and to the accepted public interest in the finality of decision-making (Re Veronica Lesley Johnson and Commonwealth of Australia: Commission of the Safety, Rehabilitation and Compensation of Commonwealth Employees [1990] AATA 1 at [19]).

5. The Applicant submits (Exhibit A2, page 2 of written submissions):

   The rejection letter also advises it wouldn’t be fair to [the former spouse] and would be extreme prejudice (sic) if your office allowed this appeal to go through as the time period for me to reject has passed however there, I feel is extreme prejudice towards me as the debt that is currently against my name for child support is an incorrect figure based on an incorrect income.

6. The Tribunal notes that the original decision by the Respondent was in September 2016. The Tribunal is conscious that the delays in the decision impact not only the Respondent but the Applicant’s former partner and his child.

7. The 28 day time frame set out in s 29(2) of the AAT Act is in place to ensure the Tribunal is accessible, fair and quick in its decision-making. The length of delay in this case is not inconsiderable having regard to the 28 day time frame. Allowing delays of this kind creates a burden on the system and those seeking to access it which would result in a wider prejudice to the community.

   Prospects of success of the substantive application

8. The prospects of success of the substantive application are relevant in exercising the discretion to allow an extension of time. The Tribunal should not however undertake a substantive review of the merits of the application (Minister for Health and Aged Care v Pharmacia and Upjohn Pty Ltd (2001) 65 ALD 76). Rather the Tribunal should assess whether the Applicant has an arguable case (Brown).

9. The Tribunal has previously declined to grant an extension of time to applicants in cases where it considers the application would have little prospect of success at a substantive hearing of the matter.

10. In this case the Applicant’s substantive application is for the review of the AAT1 decision to refuse to grant an extension of time to the Applicant to seek a review of the objection decision made by the Child Support Registrar on 2 September 2016. 

11. Part VIIA, Division 2 of the CSRC Act sets out the procedures for applying to the Tribunal for a first review of an objection decision made by the Child Support Registrar as well as applying for an extension of time for such a review in the event the application is not made within the prescribed period.

12. Subsection 29(2) of the AAT Act establishes that an application for review must be made within 28 days of being served with notice of the decision.

13. In relation to this issue the Respondent submits that the delay in the original AAT1 application for review was 290 days (following a decision made on 2 September 2016).  The Respondent submits the Applicant was notified of the decision by letter dated 6 September 2016. That letter included the statement that:

    If you think this decision is wrong you can ask the Administrative Appeals Tribunal (AAT) to review it. You must do this within 28 days from the date you receive this letter. (Original Emphasis)

14. The Applicant’s reasons for not applying within the 28 day limit were (Respondent’s Submissions, paragraph 34, Exhibit R1):

    I hadn’t had the money to do my tax returns. CSA did a case assessment that came in at $150,000 pa. I said I wasn’t happy with that and they dropped it to $100,000 pa. I still wasn’t happy. I was never informed about (sic) AAT.

    I thought I could dispute the amount of income they (CSA) had put down with a case assessment once I lodged my tax returns, this was not the case and now they deem I earnt 100,00 (sic) when I actually earned $16,000.

15. The Applicant’s substantive application for review claims that the AAT1 decision is wrong because:

    You have rejected my appeal based on the grounds that I missed the cut off time to appeal. However, you have not disputed you have based my income on an incorrect amount. I have provided all my tax returns and they clearly show that I didn’t earn the amount CSA set my income at.

    All my returns were not finalised until end of 2016 beginning of 2017 due to me being in financial hardship which I was constantly calling CSA to advise.

    Your letter advises there is some merit to my argument. However it would be prejudice to [my former spouse] if you allowed the debt to be waived.  What about the prejudice to me?  Every time I have called CSA I have been spoken Too (sic) and treated in a very nasty and in a de meaning (sic) way. I do not feel my situation is being taken into account and I certainly don’t feel any of my points have been taken into consideration.

    (Application for Second Review, Exhibit A2)

16. As noted above, during the hearing in answer to questions from the Tribunal the Applicant indicated that he had been suffering from the effects of a home invasion in July 2017.  While it was not clear whether the Applicant was seeking to rely on those events in explanation for the delay in his application for review to AAT1, which was lodged on 16 August 2017, the Respondent submits that this issue was not raised before AAT1.

17. Further the Respondent submits, and the Tribunal accepts, that the timing of the alleged home invasion in July 2017 does not provide an adequate explanation for the delay in the context where the decision was served on the Applicant on 6 September 2016 and the review application was filed 290 days out of time.

18. The Tribunal notes that in this instance it is only considering the prospects of success for an appeal against the AAT1 decision not to grant an extension of time. Having regard to the extensive delay, the finding of the application of the AAT1, the lack of acceptable explanation for the delay and the prejudice to the other parties involved, the Tribunal regards the prospects of success of an appeal against the AAT1 decision are poor. On the basis of the material before it, the Tribunal finds that the Applicant has very poor prospects of success in his substantive application for review. The Tribunal finds this weighs significantly against the granting of an extension of time in this case.

    CONCLUSION

19. The Tribunal has considered all the material before it including the submissions from the Applicant and the Respondent.  Taking into account:

    ·the substantial length of the delay in filing the application;

    ·the lack of an adequate explanation for the delay in making the application;

    ·the fact that the Applicant was made aware of his appeal rights and of the time period in which he needed to make his application;

    ·the need for efficient management of the Tribunal’s time and resources;

    ·the prejudice to the other parties involved and to the general public; and

    ·the limited likelihood of success of the Applicant’s substantive application for review;

    the Tribunal is satisfied that it should not exercise its discretion to extend the time for the Applicant to make his application for review of the extension decision of the AAT1 dated 26 September 2017.

    DECISION

20. For the reasons outlined above, the Tribunal refuses to grant the Applicant’s application for an extension of time, pursuant to s 29(7) of the AAT Act, to lodge an application for review of the extension decision of AAT1 dated 26 September 2017.

I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of

.....[sgd]..................................................................

Associate

Dated: 18 July 2018

Date of hearing:	11 May 2018
Applicant:	Self-represented
Representative for the Respondent:	Ms C Inglis
Solicitors for the Respondent:	Department of Human Services