MANCHESTER v MAHER and ORS
[2011] FMCA 877
•18 November 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MANCHESTER v MAHER and ORS | [2011] FMCA 877 |
| ADMINISTRATIVE LAW – Judicial review – decision by SSAT Principal Member to remove applicant as party to SSAT proceedings – decision by delegate of SSAT Principal Member to consequently dismiss applicant’s application to SSAT – whether SSAT Principal Member failed to consider relevant consideration – prejudice to applicant of removal as party to SSAT proceedings. |
| Administrative Decisions (Judicial Review) Act 1977, ss.5, 11(1) and (3) Child Support (Registration and Collection) Act 1988, ss.88, 101(5)(c),110B Family Law Act 1975, s.94AAA(1) Federal Court of Australia Act 1976, s.24(1)(d) and (e) Federal Magistrates Court Rules 2001, Part 42 |
| Manchester & Manchester (SSAT Appeal) [2010] FMCAfam 947 Manchester & Manchester and Ors (SSAT Appeal) [2011] FMCAfam 1215 Child Support Registrar & Farley & Anor [2011] FamCAFC 207 |
| Applicant: | MR MANCHESTER |
| First Respondent: | MS MAHER |
| Second Respondent: | MS BARKER |
| Third Respondent: | SOCIAL SECURITY APPEALS TRIBUNAL |
| Fourth Respondent: | MS MANCHESTER |
| Fifth Respondent: | COMMONWEALTH OF AUSTRALIA |
| File Number: | PAC 2496 of 2011 |
| Judgment of: | Halligan FM |
| Hearing date: | 11 November 2011 |
| Date of Last Submission: | 11 November 2011 |
| Delivered at: | Parramatta |
| Delivered on: | 18 November 2011 |
REPRESENTATION
| Solicitors for the Applicant: | Maclarens Solicitors |
| Solicitors for the First Respondent: | No Appearance |
| Solicitors for the Second Respondent: | No Appearance |
| Solicitors for the Third Respondent: | No Appearance |
| Solicitors for the Fourth Respondent: | Legal Aid Commission of New South Wales |
| Council for the Fifth Respondent: | Mr Niall SC |
ORDERS
The applicant’s Application for an order of review filed on 3 June 2011 is dismissed.
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of Federal Magistrate Halligan delivered this day will for all publication and reporting purposes be referred to as Manchester v Maher and Ors.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAC 2496 of 2011
| MR MANCHESTER |
Applicant
And
| MS MAHER |
First Respondent
| MS BARKER |
Second Respondent
| SOCIAL SECURITY APPEALS TRIBUNAL |
Third Respondent
| MS MANCHESTER |
Fourth Respondent
| COMMONWEALTH OF AUSTRALIA |
Fifth Respondent
REASONS FOR JUDGMENT
Introduction
Mr Manchester (the applicant) has applied for an order of review under s.5, Administrative Decisions (Judicial Review) Act 1977 (the Judicial Review Act) in relation to decisions of the SSAT Principal Member (the first respondent) and of the delegate of the SSAT Principal Member (the second respondent). In his application, he also sought an extension of time in which to bring his application for an order of review.
The decisions under challenge are first, a decision of the SSAT Principal Member to remove the applicant as a party to proceedings he had instituted before the SSAT (the removal decision), and second a decision of the Senior Member as delegate of the Principal Member to dismiss those proceedings (the dismissal decision).
The SSAT Principal Member (the first respondent), the SSAT Senior Member as delegate of the SSAT Principal Member (the second respondent), and the SSAT (the third respondent), have all entered submitting appearances.
The other parties to the proceedings before the SSAT were
Ms Manchester and the Child Support Registrar (the Registrar).
Ms Manchester successfully sought leave to intervene in these proceedings (the fourth respondent). The Registrar, although aware of these proceedings, did not seek to intervene in them.
The Commonwealth of Australia (the fifth respondent) also successfully sought to intervene in these proceedings, not to be an active contradictor but to make some submissions as to the source and nature of the power to give the direction, failure to comply with which lead to the decision to remove the applicant as a party to the SSAT proceedings, and on the obligation on the part of the SSAT Principal Member and the SSAT to accord procedural fairness (fifth respondent’s Written Submissions, [5]).
All parties conceded that the SSAT Principal Member had the power to issue the directions, failure to comply with which lead to the removal decision. It is thus unnecessary to consider the fifth respondent’s submissions on this point.
The applicant pressed his applications in relation to an order of review in the alternative to an appeal against the decisions under s.110B, Child Support (Registration and Collection) Act 1988 (the Registration Act). His appeal failed as I found the decisions are not amenable to appeal under s.110B because they are not decisions of the SSAT (Manchester & Manchester and Ors (SSAT Appeal) [2011] FMCAfam 1215). Hence, it is now necessary to determine his Judicial Review Act application.
Background
On 7 September 2010, Dunkley FM allowed an appeal by the father against an earlier decision of the SSAT determining his application for review and remitted the review to the SSAT for rehearing (Manchester & Manchester (SSAT Appeal) [2010] FMCAfam 947). What followed in the SSAT was in relation to that rehearing.
On 20 December 2010, the father was directed to provide further documentation to the SSAT by 21 January 2011. The father sought and was granted an extension of time to comply with this direction until 31 January 2011. He did not comply with parts of that direction.
By letter dated 1 February 2011, the Deputy Registrar of the SSAT invited the father to show cause why he should not be removed as a party to the SSAT proceedings.
The father responded to the show cause invitation by letter from his solicitors received by the SSAT on 11 February 2011.
On 15 February, 2011, the SSAT Senior Member, NSW/ACT, wrote to both the father and his solicitors advising that-
“The Principal Member … has now directed, pursuant to paragraph (c) of section 101(5) of the Child Support (Registration and Collection) Act 1988, that (the father) is no longer a party to review number SC233936 because of a failure to comply with directions given by me. The Principal Member has instructed me to advise you that she intends to provide a statement of written reasons for her direction, although there is no requirement to do so under the provisions of the Child Support (Registration and Collection) Act 1988.
…
The second party in this matter, (the mother), has today advised the SSAT that she does not intend to proceed with the review and that she consents to the dismissal of the review, pursuant to paragraph (c) of section 100(1) of the Child Support (Registration and Collection) Act 1988. Accordingly, in exercise of power delegated to me by the Principal Member, I have dismissed application for review number SC233936 pursuant to section 100 of the Child Support (Registration and Collection) Act 1988.”
The Principal Member gave written reasons for the removal decision which are dated 22 February 2011. Those reasons were forwarded to the father's solicitors under cover of a letter from the Principal Member bearing the same date. In that letter, the Principal Member advised the father's solicitors that-
“Subsequent to my decision, (the SSAT Senior Member for NSW/ACT) exercised the power, which had been delegated to her, to dismiss the application for review pursuant to s 100(1) of the Child Support (Registration and Collection) Act 1988. (The SSAT Senior Member for NSW/ACT) stated her reasons for doing so in the letter sent to you on 15 February 2011.”
The applicant first sought relief by way of an order of review when he filed an Amended Notice of Appeal (Child Support) on 15 March 2011 challenging “the Decision of the Social Security Appeals Tribunal made on 15th February 2011”. This was an amended version of a Notice of Appeal (Child Support) filed on 11 March 2011 seeking to appeal the decision “of the Social Security Appeals Tribunal made on 15th February 2011” pursuant to s.110B, Registration Act. The Amended Notice of Appeal sought to appeal the same decision under s.110B, and in the alternative sought an order of review in relation to it under the Judicial Review Act.
At the first directions hearing, I directed that any application for an order of review under the Judicial Review Act be by way of separate application in accordance with Part 42 of the Federal Magistrates Court Rules 2001. I did so because the appeal under the Registration Act and the application for an order of review under the Judicial Review Act are different causes of action with different parties and different avenues of appeal from the decisions I make in each (cf. s.94AAA(1), Family Law Act 1975 and Child Support Registrar & Farley & Anor [2011] FamCAFC 207 at [12], and s.24(1)(d) and (e), Federal Court of Australia Act 1976).
On 3 June 2011, the father filed an application for an order of review in accordance with this Court’s rules. It sought orders of review in relation to “the decision of (the first respondent) made on 15 February 2011 that (the applicant) no longer be a party to review pursuant to section 101(5)(c) of (the Registration Act)” and “the decision of (the second respondent) made on 15 February 2011 that the Application for Review of a Decision made by (the applicant) be dismissed pursuant to section 100(1) of (the Registration Act)”. By this application, the applicant sought orders setting both decisions aside and that the review before the SSAT in which the decisions were made “proceed to re-hearing in accordance with the Orders made by the Federal Magistrates Court on 7th September 2010”, and extending the time for filing the application to the date of filing.
Extension of time
The application for an extension of time was not pressed before me, nor did any of the respondents address this issue in written or oral submissions.
An application for an order of review shall be lodged within 28 days after written notice of the terms of the decision is furnished to the applicant or such further period as the court allows (s.11(1)(c) and (3), Judicial Review Act).
The first respondent’s reasons for removing the applicant as a party to the proceedings were sent to his solicitors under cover of a letter dated 22 February 2011. The reasons given by the second respondent for the decision to dismiss that applicant’s review application are to be derived from the second respondent’s letter of 15 February 2011. There is no evidence when notice of either decision was received by the applicant or his solicitor, although an inference may arise from the application for the order of review that it was more than 28 days before that application was filed.
The applicant filed the Amended Notice of Appeal (Child Support) seeking relief in the alternative under the Judicial Review Act on
15 March 2011, that is, within 28 days after the date of the reasons for both decisions.
An application for an order of review shall be made in accordance with the rules of court (s.11(1), Judicial Review Act) and filing the Amended Notice of Appeal (Child Support) was not the manner prescribed by the Court’s rules for instituting an application for an order of review (r.42.02, Federal Magistrates Court Rules).
In circumstances where no party raised a time limit issue at the hearing, I will proceed on the basis that the proceedings for an order of review were commenced within the time limit for doing so, and hence it is unnecessary to consider the application to extend time.
Grounds on which order of review sought
It was the applicant’s case that the SSAT Principal Member, in making the removal decision, should have considered the prejudice to the applicant of removing him as a party to the review proceedings, and did not do so. It was contended on behalf of the applicant that as a result-
a)the making of the decision was an improper exercise of power (Judicial Review Act, s.5(1)(e)), in that-
i)a relevant consideration was not taken into account (Ibid, s.5(2)(b)); and
ii)the exercise of power was so unreasonable that no reasonable person could have so exercised the power (Ibid, s.5(2)(g)); and
b)the decision involved an error of law (Ibid, s.5(1)(f)).
To the extent that the grounds on which the applicant sought an order of review as stated in his application included-
a)that the making of the decision was an improper exercise of power (Ibid, s.5(1)(e)) in that the decision maker took an irrelevant consideration into account (Ibid, s.5(2)(a)), and exercised power in accordance with a rule or policy without regard to the merits of the particular case (Ibid, s.5(2)(f));
b)that there was no evidence or other material to justify the making of the decision (Ibid, s.5(1)(h)); and
c)that the decision was otherwise contrary to law (Ibid, s.5(1)(j)),
those grounds were either abandoned or not pressed.
It was agreed by all parties that if the removal decision was set aside, then the dismissal decision must also be set aside. The dismissal decision was not otherwise addressed in submissions.
Source of power for removal decision
The source of the power to remove a party to SSAT proceedings exercised by the SSAT Principal Member in making the removal decision is contained in s.101(5)(c), Registration Act, which provides-
“(5) The SSAT Principal Member may direct that a party to a review no longer be a party to the review if:
…
(c) the party fails to comply with a direction or order of the SSAT or of the SSAT Principal Member given in relation to the review; …”
Basis of applicant’s case
It was submitted on behalf of the applicant that his case stood or fell on the principles that govern the exercise of the power to remove a party under s.101(5)(c), it being contended that the SSAT Principal should have balanced the prejudice to the applicant from removal as a party against the prejudice to the fourth respondent of not removing the applicant as a party, which it was contended the SSAT Principal Member had failed to do.
In the alternative, if the Court found that the appropriate test was applied in the exercise of discretion in making the removal decision, it was submitted that the exercise of discretion was so far outside a reasonable exercise of that discretion that it should be set aside, or to use the words of s.5(2)(g), “the exercise of power was so unreasonable that no reasonable person could have so exercised the power”.
The applicant’ response to show cause
In the response to the show cause letter, the applicant’s solicitor began his submissions to the SSAT Principal Member as follows-
“Excluding a party from the hearing of proceedings for failure to comply with procedural directions is an extreme step to take in any circumstances. The right to participate and be heard is a fundamental right in our legal system and no authority need be cited for that proposition. That is particularly the case in the present circumstances where there has already been a hearing and a Court has found error in the original hearing and directed that the Tribunal re-hear the matter in accordance with law.”
In the final paragraph of that letter, it was put on behalf of the applicant that-
“The power under s.101(5) of the (Registration Act) is a discretionary one, and must be exercised in accordance with law. The principal member (sic) must weigh up the prejudice to (the applicant) by excluding him from the proceedings against the prejudice to (the fourth respondent) in the late provision of documents. Given that time has been allocated for the hearing on 18th February 2011, it is difficult to see what prejudice might flow to her as opposed to the obvious prejudice to (the applicant) of excluding him from the proceedings.”
Thus, the submission to the SSAT Principal Member on behalf of the applicant squarely raised the issue of prejudice, and did so in terms suggesting the balance of prejudice was the only relevant consideration.
The Principal Member’s reasons
In her reasons for the dismissal decision, the SSAT Principal Member referred to the statutory imperative set out in s.88 of the Registration Act that-
“In carrying out its functions under this Act, the SSAT must pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.”
The SSAT Principal Member came to the conclusion that this imperative applied to her too in the exercise of her powers and functions, in that those powers and functions were conferred on the SSAT Principal Member in aid of the SSAT’s statutory objective (Reasons, [16]). The SSAT Principal Member stated her opinion that neither the proper consideration of a review by the SSAT, nor the exercise of procedural powers by the SSAT Principal Member, “was to be determined by reference solely to notions of fairness or justice” (Reasons, [19]) (emphasis added).
In relation to the submission on behalf of the applicant that in the excise of the removal power, the SSAT Principal Member “must weigh up the prejudice to (the applicant) by excluding him from the proceedings against the prejudice to (the fourth respondent) in the late provision of documents”, the SSAT Principal Member, having referred to cases in relation to the power of a court to stay or dismiss proceedings for failure of a party to comply with directions, stated that, because the relevant provisions with which the courts were concerned did not include provisions to the effect of s.88 of the Registration Act, those decisions should not be applied to the discretion reposed in the SSAT Principal Member. The SSAT Principal Member stated (Reasons, [25] and 26])-
“25. The imposition of a test wholly premised on ‘prejudice’ is not consistent with Parliament’s emphasis on the quickness of the review mechanism, or with the statutory objective of the SSAT as enacted. Parliament is presumed to have known of the consequences of removal of a party when it enacted s.100 (dismissal of an application) and s.110B (which limited the right of appeal to ‘a party’) of the Act, and to have chosen not to impose such a test or fetter on the discretion conferred by paragraph 101(5)(c) of the Act.
26. Indeed, Parliament chose to give the SSAT Principal Member the power to remove a party from a review (for failure to comply with a direction or order of the SSAT or of the SSAT Principal Member) rather than a power to dismiss the application for review if the applicant is a non-compliant party. In making that choice, Parliament necessarily contemplated that an application for review might be heard and decided on its merits even though an applicant had been removed from the review. The inference to be reasonably drawn from Parliament’s approach is that the interests of the other (compliant) party are paramount.”
The SSAT Principal Member dealt specifically with the submission on behalf of the applicant on the show cause that removal of the applicant would be a denial of procedural fairness in circumstances where this Court had found error in the previous determination by the SSAT and had ordered a rehearing of the review, and that there was no apparent injustice to the fourth respondent by the applicant’s “apparent” failure to comply with procedural directions (Reasons, [53] to [61]).
Discussion
I am satisfied that the SSAT Principal Member correctly identified the requirements of s.88, to “pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick”, as governing the exercise of the discretion under s.101(5)(c).
I do not understand that there was any submission on behalf of the applicant to the contrary.
In fact, the submissions on behalf of the applicant rely on these requirements as making it clear, through the inclusion of the words “fair” and “just”, “that Parliament did not intend to give an unfettered discretion to the Principal Member to remove a party from a review without a proper consideration of the impact on that party of being removed and the denial of the right of natural justice or procedural fairness”. Further, it was submitted on behalf of the applicant that the SSAT Principal Member, in identifying these criteria of fairness, justice, informality, informality and speed, properly referred to authorities to the effect that one objective is not to be preferred over another and to achieve these objectives requires balance and compromise.
It must follow from the application of s.88 that prejudice to each of the parties was a relevant consideration, in considering fairness and justice, but was not the only relevant consideration.
However, in written submissions on behalf of the applicant, it was put that the SSAT Principal Member took the view that the discretion under s.101(5)(c) was conditioned on one circumstance only, namely the failure of a party to comply with an order of the court directing that party to take a step in the proceedings. It was submitted that the SSAT Principal Member said that the discretion was “unconfined and no requirement for consideration of prejudice (sic)”. With respect, this is not what the SSAT Principal Member said. The relevant passage of her reasons is as follows-
“22. In Lenijamar Pty Ltd v AGC (Advances) Limited [1990] FCA 520 at [33]-[35], (1990) 27 FCR 388, Wilcox and Gummow JJ held that the power in Order 10 rule 7 of the Federal Court Rules for the Court to stay or dismiss a proceeding in the Court for the failure of a party to comply was ‘conditioned on one circumstance only: the failure of a party to comply with an order of the Court directing that party to take a step in the proceeding… There is no requirement of prejudice to the respondent”. The discretion is unconfined.
23. According to the majority judgment in A & Z [2006] FamCA 179 at [90], the majority view in Lenijamar was adopted by the Full Court of the Family Court in J and J [2000] FamCA 729 in the interpretation of an equivalent rule in the Family Law Rules.
24. For the reasons explained above, the power in paragraph 101(5)(c) was conferred on the SSAT Principal member in aid of the SSAT’s statutory objective. There is no equivalent of this objective in legislation establishing any federal court or in the rules of any of those courts. For that reason, decisions by courts as to whether the discretion under rules of court to dismiss a proceeding, due to the non-compliance of an applicant with an order of the court, should not be transposed to the SSAT…”
The “SSAT’s statutory objective” referred to in para.[24] refers to s.88.
Thus, rather than relying on what the majority said in Lenijamar, the SSAT Principal Member in fact held that “decisions by courts as to whether the discretion under rules of court to dismiss a proceeding, due to the non-compliance of an applicant with an order of the court, should not be transposed to the SSAT”. In other words, the SSAT Principal Member did not adopt what was said in Lenijamar, she explicitly declined to apply it.
A significant part of the written submissions on behalf of the applicant proceed on the basis of this misreading of the SSAT Principal Member’s reasons.
In the written submission on behalf of the applicant, it was put that the SSAT Principal Member’s reasons for the removal decision “specifically reject any requirement to consider prejudice in arriving at the decision to remove a party”. It was not indicated where any such specific rejection of this consideration is stated in the SSAT Principal Member’s reasons.
In oral submissions of behalf of the applicant, it was put that para.[24] of the SSAT Principal Member’s reasons was at the heart of the father's submissions. I have set that paragraph out above. It was put on behalf of the father that the critical sentence was-
“For that reason, decisions by courts as to whether the discretion under rules of court to dismiss a proceeding, due to the non-compliance of an applicant with an order of the court, should not be transposed to the SSAT.”
It was submitted on behalf of the applicant that the SSAT Principal Member should have applied the principles derived from these cases, and the failure to do so meant both that a relevant consideration was overlooked and that the exercise of the power was so unreasonable that no reasonable person could have come to the same conclusion.
The finding by the SSAT Principal Member that cases such as Lenijamar “should not be transposed to the SSAT” does not necessarily mean the SSAT Principal Member held prejudice to the party adversely affected by a removal decision was an irrelevant consideration.
In my view, it is apparent that the SSAT Principal Member did not hold that prejudice to the applicant was irrelevant, when one considers her statement that her powers were not to be exercised “by reference solely to notions of fairness or justice” (Reasons, [19]). Rather, in my view the SSAT Principal Member was simply pointing out that where specific statutory considerations governed the exercise of her discretion, submissions suggesting she take into account only some of those considerations, and authorities on the exercise of a similar discretion not similarly circumscribed, were not apposite to the task she had to undertake.
It was submitted on behalf of the applicant that “no consideration at all was given to the prejudice to the applicant by removing him from the proceedings as opposed to the prejudice to the respondent in taking a different course…”
In fact, the SSAT Principal Member addressed in detail, and at some length, the submissions on behalf of the applicant as to the prejudice to him of being removed as a party (Reasons, [53] – [61]), in the process contrasting the prejudice to the fourth respondent of continuing the proceedings despite the applicant’s unexplained failure to comply with directions to produce records the SSAT Principal Member found the applicant had, were of particular significance to the issues raised, and could not be obtained from other sources, with the prejudice to the applicant of removing him as a party.
Thus, rather than having failed to consider these matters, the SSAT Principal Member considered them at length. The fact that, having considered these matters, the SSAT Principal Member found the arguments made in reliance on them when balanced with the other relevant considerations were insufficient to persuade her not to exercise her power to remove the applicant as a party does not mean those matters were not considered. They were considered, and ultimately proved not to be sufficiently persuasive.
The removal of a party to SSAT proceedings is a serious step. It should only be exercised where it is clearly appropriate having regard to the statutory imperative to provide a review mechanism in the SSAT that is fair, just, economical, informal and quick.
To remove a party under s.101(5)(c) of the Registration Act for failure to comply with a direction to produce documents to the SSAT may be seen as denying a party substantive fairness and justice for failure to comply with a mere procedural direction. However, procedural fairness is what the applicant contends he has been denied by removal as a party. Failure to comply with a procedural direction may in fact deny the other party procedural fairness.
To remove a party in appropriate circumstances is not to deny that person procedural fairness or natural justice. Procedural fairness requires, inter alia, that a party be given a reasonable opportunity to be heard. But where a party is given that opportunity and chooses not to use it, for example by being required to produce documents of significance to the decision maker’s task within a reasonable time but failing to either produce the documents or provide a satisfactory explanation for that failure, then that party has failed to avail themselves of the opportunity afforded to them to be heard.
Procedural fairness has a second important feature – the right to know and have an opportunity to respond to or address the information the decision maker will consider in coming to a decision. Any suggestion the applicant could have simply produced the required documents at the hearing before the SSAT is a suggestion that the fourth respondent should not have had a reasonable opportunity to consider and respond to or address the information in those documents, and is thus a suggestion that the fourth respondent should have been denied procedural fairness.
Similarly, any suggestion the hearing before the SSAT could have been adjourned to afford the applicant further time to produce the documents he already had had ample time to produce but had chosen not to produce must be balanced against other considerations, including the requirements of economy and speed, not just for the parties in the particular matter but also for the parties to all other matters before the SSAT (cf, Aon Risk Services v ANU, above). In any event, having considered the applicant’s history of non-compliance with directions to produce financial records to the SSAT, she was satisfied he was unlikely to produce the documents at a later stage of the proceedings if he remained a party.
The SSAT Principal Member having taken into account all the arguments advanced on behalf of the applicant, principal among them the prejudice to the applicant of removing him as a party, and balancing them against other relevant considerations, including the lack of a reasonable excuse for failing to produce the documents, being satisfied the applicant understood the directions, the applicant’s history of failure to produce documents as directed, being satisfied that it was unlikely that the applicant would produce the documents if afforded more time to do so, the importance of the documents to the review, the inability to obtain all the documents from other sources, and the prejudice to the fourth respondent of proceeding without the documents, there is no demonstrated failure to take a relevant consideration into account.
Decision
In the result, the applicant has failed to demonstrate that the SSAT Principal Member failed to consider the relevant matter he contended she failed to consider in exercising the power to remove him as a party to the review proceedings before the SSAT. He has thus failed to demonstrate any reason to set that decision aside.
The sole basis on which the applicant sought to have the decision to dismiss his review application to the SSAT set aside was that if the removal decision was set aside, the consequent dismissal decision must also be set aside. He has thus failed to demonstrate any reason to set that decision aside.
Hence, the applicant’s application must be dismissed.
I certify that the preceding fifty-nine(59) paragraphs are a true copy of the reasons for judgment of Halligan FM
Date: 18th November 2011
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