McCormack & McCormack & Another (SSAT Appeal) - [2011] FMCAfam 963

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MCCORMACK & MCCORMACK & ANOR (SSAT APPEAL)

[2011] FMCAfam 963

CHILD SUPPORT – SSAT APPEAL – Validity of decision to remove appellant as party to proceedings – denial of procedural fairness – appeal upheld.

Child Support (Registration and Collection) Act 1988, ss.100, 101(5), 102, 110B, 110C, 110D, 110E, 110F, 110G, 110K
Social Security (Administration) Act 1999
Administrative Appeals Tribunal Act 1975, ss.35, 44(1), 44(2)
Freedom of Information Act 1982

Byrne & Graham & Ors (SSAT Appeal) [2010] FMCAfam 1116
News Corporation Ltd and Others v National Companies and Securities Commission (1984) 57 ALR 550
Director General of Social Services v Chaney (1980) 31 ALR 571

Appellant:

MR MCCORMACK

First Respondent:

MS MCCORMACK

Second Respondent:

CHILD SUPPORT REGISTRAR

File Number:

DGC 2395 of 2008

Judgment of:

Hughes FM

Hearing date:

5 May 2011

Date of Last Submission:

5 May 2011

Delivered at:

Melbourne

Delivered on:

9 September 2011

REPRESENTATION

Counsel for the Applicant:

In person

Counsel for the first Respondent:

In person

Counsel for the second Respondent:

Mr Boughton

Solicitors for the second Respondent:

Australian Government Solicitor

ORDERS

The appeal from the decision of the Social Security Appeals Tribunal of 18 October 2010 is upheld.
The decision of the Social Security Appeals Tribunal of 18 October 2010 is set aside and the matter remitted for rehearing.

IT IS NOTED that publication of this judgment under the pseudonym McCormack & McCormack & Anor (SSAT Appeal) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

DGC 2395 of 2008

MR MCCORMACK

Appellant

And

MS MCCORMACK

First Respondent

CHILD SUPPORT REGISTRAR

Second Respondent

REASONS FOR JUDGMENT

This is an appeal from a decision of the Social Security Appeal Tribunal (SSAT) made on 18 October 2010. The appellant did not participate in the SSAT hearing because he was removed as a party to those proceedings two days before the hearing. The appeal is from both the substantive decision and from the decision to remove him as a party to the proceedings.
The appellant is the father of two children for whom he is liable to pay child support pursuant to an administrative assessment. The first respondent is the mother of the children and the parent entitled to be paid child support. Neither of the parents was legally represented in these proceedings. The second respondent is the Child Support Registrar who was represented by the Australian Government Solicitor.
The second respondent argued, firstly, that the decision to remove the appellant as a party to the SSAT proceedings was a procedural decision and not a decision of the sort appealable to this Court and, secondly, that the appellant had no standing to bring the appeal from the substantive SSAT decision as he was not a party to the proceedings at the time the decision was made.

Background

On 26 May 2010 the first respondent (the mother of the children) applied to the SSAT for a review of an objection decision made in favour of the appellant by a senior case officer of the Child Support Agency on 18 May 2010.
On 16 July 2010 a pre-hearing conference was conducted in the SSAT and directions made for the filing of material. A letter enclosing a copy of the directions was sent to the parties the same day.
The directions fixed the matter for hearing by the SSAT on

1 September 2010. All evidence and written submissions were due to be filed by 11 August 2010. Each party was required to file particular documents which were set out in the directions. Neither party complied with the filing directions.
On 12 August 2010 individual letters were sent to both the appellant and the first respondent from the State Business Manager of the Child Support Agency. Each letter noted there was outstanding material to be filed by that party. The letter advised each of them that the Tribunal could remove them as a party for failure to comply with directions. An extension of time to file material was granted to each party until 5pm on 19 August 2010.
On 16 August 2010 the appellant sent an email to the SSAT, referring to the letter of 12 August 2010. The substance of his email is as follows:
I have been directed by SSAT to provide documents for profit/loss statements, and full accounts of my business. This however is required to be done by book keepers/accountants. I have all my information currently at the book keepers and have to have all this finalised within the next three weeks. This will be my 2008/2009 tax return, 2009/2010 tax return, profit/loss statement and all the other listed requirements. I am not trying to hold up these proceedings but need these documents to prove my assessment amount and my actual income.
As soon as this is finalised i [sic] will have these documents express posted to your office. This will provide clear and precise information about my earnings as well as the fact that its varified [sic] information.
I understand these were required to be in by August 11 as u [sic] letter states but this has not been possible due to the timeframe given. I am hoping that an extension be granted so that these documents can be viewed as part of the proceedings.
On the same day, 16 August 2010, Ms P, a case manager with the SSAT in Melbourne, replied by email to the appellant as follows:
I acknowledge receipt of your email dated 16 August 2010.
Your request for an extension of time to comply with the directions issued at the Pre Hearing Conference has been referred to the Presiding Member of the Tribunal.
The Tribunal requests that you provide the required documents as soon as possible.
Please note, it is open to the Tribunal to remove you as a party to the appeal for failing to comply with the directions.
On 30 August 2010 a letter was sent to the appellant advising him he had been removed as a party to the SSAT proceedings. The substance of the letter is as follows:
This letter is to advise that as you have failed to comply with the Directions issued at the pre-hearing conference and have provided no satisfactory explanation for this failure, the SSAT has removed you as a party to the appeal.
The SSAT will not contact you further in relation to this matter.
That letter is not likely to have reached the appellant before the hearing on 1 September but a copy of it was attached to an email sent to the appellant on 31 August 2010 by Ms P. The email confirmed the appellant had been removed as a party to the appeal and reiterated that he should disregard any SMS reminders about the hearing listed the following day.
On the same day, 31 August 2010, the appellant replied by email to

Ms P expressing his disbelief that he had been removed as a party and asking what options he had in light of that decision. He received a response later that day which read as follows:
I acknowledge receipt of your email dated 31 August 2010.
A decision as to whether or not to remove a party is a matter for the Tribunal.
In this case the Tribunal has decided to remove you as party to the appeal MC235677.
The Tribunal will not contact you further in relation to this matter.
The appellant said from the bar table that he immediately took steps to try and have the decision reversed and was ultimately directed to the Commonwealth Ombudsman who advised him that the decision to remove him as a party was a decision of the Tribunal and that any appeal from that decision had to go before a Court.

The hearing in the SSAT

The hearing of the matter by the SSAT commenced on 1 September 2010. The appellant did not appear, having been told by the Tribunal not to attend. The proceedings were adjourned that day for the obtaining of further information. The nature of the further information is not apparent from the decision. The only information about the adjournment is contained at paragraphs 10 and 11 of the SSAT decision which are as follows:
10. The matter was heard on 1 September 2010 and adjourned to obtain further information, all of which was received by the Tribunal by 8 October 2010 and copies provided to Ms McCormack and the Agency.
11. The Tribunal reconvened on 18 October 2010 and made its decision.
The appellant’s material might also have been available by 18 October 2010.
The decision of the Tribunal increased the amount of child support payable by the appellant.
The decision of the SSAT was dispatched on 29 October 2010. Section 103X of the Child Support (Registration and Collection) Act 1988 requires the SSAT to provide a copy of the decision to the parties within 14 days. It appears the appellant was not sent a copy, perhaps because he was no longer a party to the proceedings. If this is so, it is a poor state of affairs. As someone directly and personally affected by the decision he ought to have been sent a copy whether or not he participated in the hearing and whether or not he was still a party to the proceedings.
The appellant filed his Notice of Appeal in this Court on 14 December 2010. On 8 March 2011 he filed an amended Notice of Appeal.

Does the appellant have standing to appeal the SSAT decision?

Part VIIA of the Child Support (Registration and Collection) Act 1988 was enacted as part of the 2006 reforms to the Child Support Scheme.[1] It provides for review by the SSAT of decisions of the Child Support Registrar.
[1] Child Support Legislation Amendment (Reform of the Child Support Scheme – New Formula and Other Measures) Act 2006
Division 3 of Part VIIA deals with appeals to a court from decisions of the SSAT and references on questions of law from the SSAT.
Subdivision B is the relevant subdivision in this case. It contains two provisions which deal with the identification of parties to an appeal but which, on their face, appear contradictory. They are sections 110B and 110D:
SECTION 110B APPEALS FROM DECISIONS OF SSAT
110B A party to a proceeding before the SSAT under Part VIIA may appeal to a court having jurisdiction under this Act, on a question of law, from any decision of the SSAT in that proceeding.
… … …
110D PARTIES TO APPEALS
110D the parties to a proceeding under this Subdivision are the people who were the parties to the proceeding before the SSAT when the SSAT made the relevant decision [my emphasis].
Subsection 110B provides standing to the appellant to bring the appeal because he was a party to the proceeding before the SSAT until he was removed on 30 August 2010. The proceeding is the whole action and is much broader in scope than the actual hearing. However, subsection 110D appears to restrict standing to those who were parties at the time of the relevant decision. Each provision, read on its own, would lead to a different outcome in the present case.
The reason for the contradiction is not apparent from the legislation. The Explanatory Memorandum to the Bill provides little assistance. It says the following in relation to each provision:
Section 110B deals with appeals from decisions of the SSAT. It 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 SSAT in that proceeding. This is consistent with how matters are currently appealed from the AAT to a court. The SSAT and AAT are tribunals which consider the merits of a case, whereas a court only considers matters which raise a question of law.
… … …
Section 110D provides that the parties to the appeal are the people who were the parties to the proceedings before the SSAT when the SSAT made the relevant decision. This section is expressed in this way to provide clarity in who are the parties to the appeal, because parties may have been joined to, or dismissed from, the SSAT proceedings, at various points.[2]
[2] Child Support Legislation Amendment (Reform of the Child Support Scheme – New Formula and Other Measures) Bill 2006, Explanatory Memorandum page 125
It could not have been the intention of the legislature for the provisions to be contradictory, especially when they were enacted together as part of the one suite of amendments to the Act and are contained in the one subdivision, separated by only one subsection. It is also unlikely that the legislature would have intended standing to be denied to someone who had been a party to the SSAT proceedings, who was directly affected by the decision and who wanted to appeal the decision.
In my view, the subdivision as a whole gains coherence and the apparent internal conflict is resolved by notionally inserting the word “other” into the opening words of section 110D. This means that section 110D is directed at identifying the other parties to the appeal, given the appellant is obvious and various other parties may have been joined or removed during the life of the SSAT proceedings.
This interpretation makes sense when one looks at the overall structure of subdivision B:
·Section 110B is the first provision of the subdivision and empowers a party to the SSAT proceeding to appeal any decision of the Tribunal on a question of law;
·Section 110C provides time limits in which an appeal must be instituted;
·Section 110D (on this interpretation) identifies the other parties to the appeal;
·Section 110E provides for the constitution of the appeal court;
·Section 110F sets out the powers of the appeal court; and
·Section 110G empowers the appeal court to make findings of fact.
This interpretation is also consistent with the simplified outline of the Division contained in section 110A, the relevant part of which provides as follows:
If a person is dissatisfied with a decision of the SSAT on a question of law in relation to a review under Part VIIA of a decision of the Registrar, the person may appeal the decision to a court.
Although the Explanatory Memorandum to the Bill does not squarely address the issue, the interpretation suggested is not inconsistent with it.
For these reasons I am satisfied that the appellant has standing to bring the appeal.

The amended Notice of Appeal

The appellant was not legally represented in these proceedings. His amended Notice of Appeal filed on 8 March 2011 is a mixture of grounds of appeal, evidence and submissions.
Ground 1 alleges the appellant was not given a specific date by which to file his financial documents in the SSAT.
Ground 2 alleges the appellant was given insufficient time to gather the necessary evidence to dispute the first respondent’s allegations about him.
Ground 3 alleges the appellant was denied natural justice by the SSAT.
Grounds 4 to 10 really comprise evidence and allege that false evidence was presented by the first respondent in the proceedings before the SSAT.
Grounds 1, 2 and 3 all relate to both the substantive decision of the SSAT and the decision to remove the appellant as a party to those proceedings.

Is the decision to remove of the appellant as a party to the SSAT proceedings an appealable decision?

Section 101(5) of the Child Support (Registration and Collection) Act 1988 empowers the Principal Member of the SSAT to remove a party to the proceedings before it:
101(5) SSAT Principal Member may remove parties 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;
The Principal Member may, in writing, delegate the power to a member of the SSAT or a member of the staff of the SSAT.[3]
[3] Social Security (Administration) Act 1999, schedule 3, clause 20
As noted earlier, decisions of the SSAT are appealable to this Court in accordance with section 110B of the Child Support (Registration and Collection) Act 1988 which is as follows:
110B A party to a proceeding before the SSAT under Part VIIA may appeal to a court having jurisdiction under this Act, on a question of law, from any decision of the SSAT in that proceeding. [my emphasis]
The question is whether a decision made by the Principal Member of the SSAT or her delegate to remove a party prior to the substantive hearing of the proceedings constitutes “a decision of the SSAT in that proceeding”.
In a paper delivered on 27 July 2010,[4] Federal Magistrate Halligan discussed the various decisions which might be made in the SSAT prior to the substantive hearing of a matter under review and considered whether such decisions are appealable under section 110B. He noted, for instance, the powers of the Executive Director (now Principal Member)[5] under s100 of the Child Support (Registration and Collection) Act 1988 to summarily dismiss an application. Although he said a definitive answer would have to await the determination of the issue on appeal from the SSAT, he formed the preliminary view that a decision of the Principal member was not a decision of the SSAT for the purpose of s110B.
[4] Halligan FM “Appeals from SSAT Child Support Decisions” a paper for the Legal Aid NSW Child Support Seminar Series, 27 July 2010.
[5] The name of the “Executive Director” of the SSAT was changed to the “Principal Member” by Act no 38 of 2010.
The same view was reached by Federal Magistrate Riethmuller in the case of Byrne v Graham & Ors (SSAT Appeal) [2010] FMCAfam 1116. In that case there were two sets of proceedings before the SSAT. Two different sets of directions were made for the filing of material and a different date set for each hearing. The appellant said he was confused about the various dates and failed to comply with the directions. The Executive Director removed the appellant as a party to the proceedings and, given the respondent did not wish to proceed, the proceedings were dismissed altogether. The appellant sought to have the SSAT proceedings reinstated.
Federal Magistrate Riethmuller considered whether or not there was a right of appeal from the decision to remove the appellant as a party to the proceedings. He noted that the Child Support (Registration and Collection) Act 1988 does not define the term “SSAT” and that the only definition is found in the Social Security (Administration) Act 1999 which, unhelpfully, defines SSAT as meaning “the Social Security Appeals Tribunal”.
FM Riethmuller noted that clause 10 of Schedule 3 of the Social Security (Administration) Act 1999 deals with the Constitution of the SSAT for each hearing. It reads as follows:
10 Constitution of SSAT for each hearing
(1) Subject to clause 11, the Principal Member may give written directions as to the member who is, or members who are, to constitute the SSAT for the purposes of:
(a) a particular review; or
(b) reviews of a particular kind.
(2) Without limiting subclause (1), the Principal Member may give a direction under that subclause as to the member who is, or members who are, to constitute the SSAT for the purposes of all reviews, or reviews of a particular kind, that are listed for hearing at a particular place during a particular period or during particular periods.
(3) For the purposes of a review, the SSAT is to be constituted by the member or members ascertained in accordance with the directions given under subclause (1).
FM Riethmuller concluded that, for the purpose of any particular review by the SSAT, the SSAT is constituted by the members nominated in writing by the Principal Member and a decision by the Principal Member prior to the substantive review is not a decision of the SSAT. He said as follows:
It seems clear that the SSAT must be constituted by a specific member for the purpose of conducting a review. The appeal provisions relate to decisions of a member nominated for the purpose of conducting their review. In this case, the proceedings had not reached that point, but the Executive Director had exercised various other powers under the Act. Those powers do not appear to be the subject of the appeal provisions or review by the Tribunal.[6]
[6] Byrne & Graham & Ors (SSAT Appeal) [2010] FMCAfam 1116, paragraph 23

The provisions of the Registration and Collection Act which provide for an appeal from a decision of the SSAT to this Court closely reflect the provisions of the Administrative Appeals Act 1975 which provide for appeals from the AAT to the Federal Court of Australia. In the absence of relevant case law involving appeals from child support decisions of the SSAT, Halligan FM in his July 2010 paper looked to decisions of the Federal Court in relation to what constituted a “decision” for the purpose of an appeal from the AAT under s.44 of the Administrative Appeals Tribunal Act 1975.
The issue was dealt with at length in Director-General of Social Services v Chaney (1980) 31 ALR 571. In that case an officer of the Department of Social Security had suspended the payment of a widow’s pension to Mrs Chaney. The decision was reviewed by the Director-General of Social Services who confirmed the decision. Mrs Chaney applied to the AAT for a review of the decision of the Director- General. The President of the Tribunal made two preliminary determinations; firstly, a ruling that the Tribunal had jurisdiction to review the decision; and, secondly, an order suspending the previous ruling of the Director-General disallowing Mrs Chaney’s appeal from the original decision. The Director-General appealed to be Federal Court from those preliminary decisions of the President of the AAT.
The majority of the Federal Court (Dean and Fisher JJ) dismissed the appeal on the basis that an appeal to the Federal Court under s.44(1) of the Administrative Appeals Act 1975 “lies only from a decision of the Tribunal which constituted the effective decision or determination of the application for review”.[7]
[7] Director General of Social Services v Chaney (1980) 31 ALR 571 at 593
In reaching that decision, Deane J noted the difficulty in defining “decision” for the purpose of the legislation when there were numerous references to decisions prior to the ultimate decision of the Tribunal. He noted that the AAT had not, at that stage, made any determination in relation to the substantive issue and had only made a ruling on the preliminary question of jurisdiction and an interim order pending the determination of the substantive application.[8] He was mindful of the disruption to the orderly resolution of disputes if every preliminary or interlocutory decision made along the way to hearing a substantive issue was subject to an appeal on a question of law.[9] He formed the view that the legislative intent was that an appeal lay only from the ultimate decision of the Tribunal. He qualified his conclusion in two respects. The first was where the proceeding before the AAT could be divided into two or more separate and independent final decisions. The second was in relation to a decision by the Tribunal that a person should not be joined to the proceedings because their interests are not affected by the decision under review and for which a separate right of appeal was provided pursuant to s.44(2) of the Administrative Appeals Act 1975.
[8] Ibid at 589
[9] Ibid at 592
An important aspect of the reasoning of Deane J appears to be that the preliminary rulings did not prejudice the interests of either party because they did not dispose of any part of the proceedings or impact on the determination of the ultimate issue in any way. His Honour noted that if the preliminary decision had ousted the jurisdiction of the Tribunal the result may well have been different because it would have effectively determined the entire proceeding. This can be seen from the following excerpt of the judgement:
As has been said, the ruling that the Tribunal had jurisdiction to hear the application for review simply asserted the Tribunal’s jurisdiction to continue to hear the application on the merits. That ruling did not effectively dispose of the proceedings or any independent part thereof. It was not, in my view, a decision from which an appeal lay, on a question of law, to this court pursuant to the provisions of s 44(1) of the Act. In the event that the Tribunal adheres, in light of all the evidence, to its present ruling the jurisdiction exists and ultimately decides to set aside or vary the decision of the Director-General, an appeal will lie from the ultimate decision of the Tribunal on any question of law involved in the ruling for the reason that the assertion as to jurisdiction will constitute part of the structure of such an ultimate decision. The position would, of course, have been different if the ruling had gone the other way and the Tribunal had held that it had no jurisdiction to deal with the matter. In that event the decision of the Tribunal would have effectively disposed of the preceding before it. [10]
[10] Ibid at 593- 594
This line of reasoning was expanded in the case of News Corporation Ltd and Others v National Companies and Securities Commission (1984) 57 ALR 550. In that case the National Companies and Securities Commission (the “NCSC”) had commenced an investigation into the affairs of News Corporation and associated companies. The companies made a request pursuant to the Commonwealth Freedom of Information Act 1982 for access to documents obtained by the NCSC during the investigation. The request was refused and the companies appealed the decision to the AAT. As part of the proceedings before the AAT a ruling was made pursuant to section 35 of the Administrative Appeals Act 1975 that some of the evidence relied upon by the Tribunal would not be disclosed to the applicants or their counsel because the disclosure might prejudice the ongoing investigation by the NCSC. The AAT then upheld the original decision to refuse the FOI request.
The companies appealed to the Federal Court of Australia from both the substantive decision of the AAT and from the decision of the Tribunal to hear evidence which was not disclosed to the appellants. Counsel for the NCSC relied upon Chaney[11] to argue that only the final decision of the AAT was appealable and not the decision concerning the conduct of the proceedings leading to the final determination. The Full Court of the Federal Court rejected that argument. Chaney was distinguished on the basis that there had been no final decision of the Tribunal in that case whereas, in News Corporation the appeal was brought after the final decision of the AAT.
[11] Director General of Social Services v Chaney (1980) 31 ALR 571
The Full Court in News Corporation held that any interlocutory decision which affects the final determination and results in an error of law is justiciable as part of the appeal from the final decision.
In the present case, the final decision of the Tribunal has been made. The interlocutory decision to remove the appellant as a party to the proceedings had an immediate and determinative affect on the final determination. Without anyone to oppose the application by the first respondent, the outcome was a foregone conclusion adverse to the appellant.
The wording of s.101(5) of the Child Support (Registration and Collection) Act 1988 suggests that it is directed at situations where there is a lack of interest in the proceedings by a party or a lack of co-operation by them with the proceedings:
101(5) SSAT Principal Member may remove parties The SSAT Principal Member may direct that a party to a review no longer be a party to the review if:
(a) the party consents; or
(b) the SSAT Principal Member is satisfied:
(i) after having communicated with the party; or
(ii) after having made reasonable attempts to communicate with the party and having failed to do so;
that the party does not intend to participate in or proceed with review; or
(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; or
(d) the party fails to attend the hearing.
In my view a distinction can be made between matters in which a party has failed to engage in the process or has deliberately refused or failed to comply with directions and one in which the party is actively engaged in the proceedings and has attempted to comply with directions. In the former case, the removal of the party is likely to have no discernible impact on the ultimate outcome. In the latter, a decision to remove the party is likely to effectively determine the outcome of the entire proceedings in a manner adverse to that party.
In this case the objections officer had made a decision in favour of the appellant. The first respondent sought to reverse that decision in the SSAT. The appellant was actively engaged in the proceedings. He wished to present evidence and make submissions. Removing him as a party was punitive in nature. It prevented him from even arguing his case on the material available, whether or not he was able to present further evidence. To classify that decision as merely procedural, denies reality. In the words of Deane J in Chaney, it “effectively disposed of the preceding before it”.
In the circumstances, the nature of the decision renders it justiciable in this Court on a question of law as part of the determination of the ultimate decision of the Tribunal.

Was the decision to remove the appellant as a party to the SSAT proceedings lawful?

It is not possible to examine any documents relevant to the decision to remove the appellant as a party as no documents were provided by the SSAT to the Court, notwithstanding section 110K of the Child Support (Registration and Collection) Act 1988 which compels the Presiding Member to provide them:
SECTION 110K SENDING OF DOCUMENTS TO AND DISCLOSURE OF DOCUMENTS BY, THE COURT
110 K When an appeal is instituted in a court, or a question of law is referred to a court, under this Division, the SSAT Principal Member must cause to be sent to the court all documents:
(a) that were before the SSAT in relation to the proceedings to which the appeal or the reference relates; and
(b) that are relevant to the appeal or the reference.
Mr Boughton from the Australian Government Solicitor’s office wrote to the Executive Director [12] of the SSAT on 16 March 2011 referring to the lack of documents provided by the SSAT in preparation for the current proceedings. Mr Boughton specifically advised that the decision to remove the appellant as a party to the SSAT proceedings was the subject of appeal to this Court. Paragraphs 5, 6 and 7 of

Mr Boughton’s letter are as follows:
5. However, we advise that in addition to the grounds of appeal set out in the Notice of Appeal at a directions hearing before the Magistrates Court (sic) Mr McCormack indicated that there were two decisions of the SSAT which he wished to appeal against (which we have outlined previously).
6. In particular, one of his criticisms of the decision of the SSAT to remove him as a party is the suggestion that he was given an indefinite extension of time to lodge his financial material and then suddenly and without warning the SSAT on 30 August 2010 unilaterally determined that he had had sufficient time and at that point removed him as a party to the proceedings for failing to file relevant documents.
7. We would be obliged if you could advise us when the relevant documents have been forwarded to the court and we will then attend at the court for the purpose of inspecting them in preparation for the hearing of this matter on 5 May 2011.
[12] The letter was incorrectly addressed to the “Executive Director” rather than to the “Principal Member” in accordance with the legislative change to the title in 2010
On 17 March 2011, the Principal Member of the SSAT wrote back to Mr Boughton and advised that she was of the view that there was no obligation under section 110K of the Child Support (Registration and Collection) Act 1988 to provide documents to the Court as the appellant had been removed as a party and, therefore, had no right of appeal against the decision. This was an extraordinary position to take given Mr Broughton had specifically advised that the decision to remove the appellant as a party was, itself, the subject of the appeal. The consequence of the refusal by the Principal Member to fulfil her statutory obligation is that this Court has been deprived of material relevant to its determination.
Absent material from the SSAT, the only evidence relevant to the decision to remove the appellant as a party is that provided by the parties in the current proceedings. That material consists of correspondence from the SSAT to the appellant; correspondence from the Child Support Agency to the appellant and first respondent; correspondence between Mr Boughton and the Principal Member of the SSAT; and the decision of the SSAT of 18 October 2010.
There is a conflict on the evidence about who actually made the decision to remove the appellant as a party. When the appellant asked for an extension of time to file his documents for the SSAT hearing, the email he received in reply said that his request for extension had been “referred to the Presiding Member of the Tribunal” and that “The Tribunal requests that you provide the required documents as soon as possible”. Thereafter, all of the correspondence to the appellant referred to the decision to remove him as a party as having been made by “the Tribunal”:
a)The letter of 30 August 2010 from the SSAT to the appellant contained the following statement:
This letter is to advise that … the SSAT has removed you as a party to the appeal.
b)The e-mail from Ms P to the appellant on 31 August 2010 contained the following statements:
A decision as to whether or not to remove a party is a matter for the Tribunal.
In the case the Tribunal has decided to remove you as party to the appeal MC235677.
The decision, however, is not a matter for the Tribunal. The legislation is clear – the Principal Member is the only person empowered to direct a party be removed unless the power has been delegated in accordance with the regulations to the Social Security (Administration) Act 1999. There is no evidence before this Court of a lawful delegation of the power.
The following sentence in the letter from the Principal Member to

Mr Boughton on 7 March 2011 suggests that such a delegation had occurred:
As you are aware, a direction was made by a delegate of the SSAT Principal Member on 30 August 2010 that Mr McCormack was no longer a party to the review.
Without evidence of a valid delegation, however, I cannot be satisfied that the decision to remove the appellant as a party to the proceedings was lawfully made.
Paragraph 9 of the SSAT decision of 18 October 2010 refers to the reason for the appellant being removed as a party to the proceedings:
At Mr McCormack request he was granted further time until 27 August 2010 to comply with the directions. As Mr McCormack had not provided any of the specified information or documents as at 30 August 2010, nor had he provided any adequate reason or supporting documentation for his non compliance with the Tribunal’s directions, he was removed as a party to this matter on 30 August 2010 pursuant to section 101 of the Child Support (Registration and Collection) Act 1988.
None of the three parties in the proceedings before me were able to identify any evidence at all that the appellant was given 27 August 2010 as the final date by which he was required to file his material.

He was not given the opportunity to be heard before he was removed. He had kept in touch with the Tribunal and explained that his financial material was in the process of being prepared by accountants. The hearing in the Tribunal was adjourned in order that other material might be provided, although by whom is not clear. It may well have been that the appellant could have provided his material by the adjourned date but he was not given that opportunity.
On the material before me I cannot be satisfied the appellant was lawfully removed as a party to the review before the SSAT for the following reasons:
a)The only person empowered to make the decision is the Principal Member or her delegate. There is a conflict on the evidence about whether the decision was made by the Principal Member for some other person and there is no evidence of a valid delegation of power by the Principal Member.
b)There are no reasons for decision for the removal other than a statement made by the Tribunal in the reasons for the substantive decision that the appellant was given a date by which he was to provide certain documents and he failed to do so. There is no evidence before this Court that the appellant was ever given that date. Without adequate reasons for the decision, there can be no confidence that section 101(5) of the Child Support (Registration and Collection) Act 1988 was correctly applied.
c)The appellant was not accorded procedural fairness before the decision was made to remove him as a party. He was not given the opportunity to be heard about any aspect of that decision.
Accordingly, the appeal against that decision is upheld.

The substantive decision of the SSAT

The removal of the appellant as a party to the proceedings infected the final decision of the SSAT with legal error because the appellant was denied procedural fairness in the making of that decision.
The right to be heard is a fundamental requirement of procedural fairness. The appellant in this case wished to argue his case before the SSAT but was denied that opportunity. He was excluded from the hearing and told not to attend. He had been engaged in the proceedings until then and tried hard to find a way to be reinstated after his removal but was not successful. The Tribunal, therefore heard only one party’s case.
Even if I am wrong about whether the decision to remove the appellant as a party to the SSAT proceedings is a justiciable decision in this Court, the SSAT nevertheless fell into error in its final determination through the lack of procedural fairness. Whether or not the appellant was a party he was directly affected by the matter under consideration by the Tribunal and ought to have been given the opportunity to be heard. Even if he was precluded from presenting his own evidence because he had failed to comply with the filing timetable, he ought to have been given the opportunity to apply for an adjournment of the hearing (which occurred in any event for unknown reasons) or to test the evidence of the other party and to make submissions.
The lack of procedural fairness amounts to an error of law. Accordingly, the appeal is upheld. The matter will be remitted to the SSAT for rehearing.

I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Hughes FM

Date: 9 September 2011