Mergan and Child Support Registrar (Child support)

[2022] AATA 3078

Mergan and Child Support Registrar (Child support) [2022] AATA 3078 (22 July 2022)

DIVISION:Social Services & Child Support Division

EXTENSION APPLICATION

NUMBER:2022/SC024065

APPLICANT:  Mr Mergan

OTHER PARTY:  Child Support Registrar

DATE DECISION MADE:                22 July 2022

APPLICATION:

An extension application made on 8 June  2022 asking the AAT to consider the application for AAT first review of a decision of the Child Support Registrar on 17 March 2022 despite the period for applying for review having ended.

DECISION:

The extension application is refused.

CATCHWORDS

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

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

STATEMENT OF REASONS

1. On 17 March 2022, an objection officer decided to partly allow an objection to a change of assessment decision.  A notice informing the parties to the child support assessment of the same date advised that if they thought the decision was wrong, they could apply to this Tribunal for review of the decision,  but must do so within 28 days from the date the letter was received.

2. The advice in the notice relevantly reflects the terms of sub-section 29(2) of the Administrative Appeals Tribunal Act 1975.

3. Mr Mergan  applied to the Tribunal for review on 8 June 2022.  I note that Mr Mergan has indicated that he received the notice of 18 March 2022 in his application to the Tribunal, and so I find that Mr Mergan received the notice no later than that date.

4. The 8 June 2022 falls outside the prescribed time period of 28 days from the date the notice of the decision was given to Mr Mergan. The application was some eight weeks out of time.

5. Section 91 of the Child Support (Registration and Collection) Act 1988 provides for a person to apply for an extension of time, and section 92 requires the Tribunal to consider the application and either grant it or refuse it.

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

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

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

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

   ·      the explanation for the delay;

   ·      the merits of the substantial application;

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

   ·      any public interest considerations that might flow from a successful application including “the unsettling of other people” (Ralkon v Aboriginal Development Commission(1982) 43 ALR 535 at 550) or of “established practices” (Douglas v Allen (1984) 1 FCR 287).

8. Mr Mergan’s explanation for the delay is brief.  He contends in his application that, “ I rely on my daughter to assist me in electronic communications because I am illiterate in this area. My representative asked my daughter to prepare an email for me to notify the AAT of a request for review on 11 April. She did not realise the urgency to prepare the email and did not notify me until yesterday (7 June 2022). Given the very short delay over the 28 day period I request that this extension be granted”.

1. I have examined the objection officer’s decision.  I cannot accept that Mr Mergan  would not have understood that the appeal had to be lodged within 28 days of receiving the decision if either he or his representative had read the decision. If he involved his daughter she should have been informed accordingly.   I do not consider the time delay to be caused by Mr Mergan’s computer illiteracy.

2. It follows that I am not persuaded there is an acceptable explanation for the delay in lodging the review application with the Tribunal, and I attach significant weight to that factor against granting the application to extend time.

3. As to the merits of the substantive application, I have considered the reasoning of the objection officer on its face and the brief description provided by Mr Mergan as to why he now seeks review. Mr Mergan says  that, “ The decision maker failed to take into account my submission which was  emailed to the department 3 days prior to the decision. I believe the decision is biased against me. I would also like it noted that the department did not call me to tell me that they were considering a decision that would affect my financial situation adversely , thereby denying me procedural  fairness by not giving me a chance to make further submissions”. 

4. The tribunal does not accept Mergan’s contentions that the department has been biased against him; or had an obligation to phone him to inform him that it was considering a decision that would affect his financial situation adversely: or that he had been denied procedural fairness by not allowing him to make a further submission.

5. The tribunal notes that on page 24 of the hearing papers the delegate of the department has stated that:-

   ·On 3 February 2022 and again on 15 February 2022 the registrar requested Mr Mergan to provide his business financials from the 2020/21 financial year, including profit and loss statement, depreciation schedule and balance sheet

   ·Mr Mergan declined to provide the documentation.

   ·Mr Mergan is a director of [Company] , the ATO only have income records for the company for  the 2019/20 financial year, the 2020/21 business income tax return and BAS had not been submitted.

   ·The registrar had to seek financial information about Mr Mergan from a third party under section 161 of the Child Support (Assessment) Act 1989.

6. In light of these matters, I am of the view that the application for review, if an extension of time were to be granted, would face  poor prospects of being successful from Mr Mergan’s perspective.  This consideration also weighs against granting the application for an extension of time.

7. While I do not consider that the other parent or the public interest at large would be so adversely impacted by an extension of time in this matter that  either of those considerations weigh against granting the application.  The application to the tribunal is plainly late, but not so late that the other parent would be prejudiced in presenting their case, or that the general public would be prejudiced or unsettled by departure from the ordinary need to comply with statutory timeframes.

8. On balance however, I consider that the absence of an acceptable explanation for the delay, and the low apparent merit of the substantive application combine to justify my decision to refuse to grant the extension of time.