Morgan and Marsh and Anor (SSAT Appeal)
[2011] FMCAfam 768
•2 August 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MORGAN & MARSH and ANOR (SSAT APPEAL) | [2011] FMCAfam 768 |
| CHILD SUPPORT – Appeal regarding child support – leave to appeal – application for leave to appeal out of time – delay – no explanation for delay – no question of law raised in Notice of Appeal. |
| Child Support (Registration and Collection) Act 1988, ss.110B, 110C, 113 Federal Magistrates Court Rules 2001, R.25A.06 |
| Applicant: | MR MORGAN |
| First Respondent: | MS MARSH |
| Second Respondent: | CHILD SUPPORT REGISTRAR |
| File Number: | SYC 5341 of 2010 |
| Judgment of: | Scarlett FM |
| Hearing date: | 3 May 2011 |
| Date of Last Submission: | 3 May 2011 |
| Delivered at: | Sydney |
| Delivered on: | 2 August 2011 |
REPRESENTATION
| Counsel for the Applicant: | The Applicant appeared in person |
| Solicitors for the Applicant: | No solicitor |
| Counsel for the First Respondent: | The First Respondent attended by telephone |
| Solicitors for the First Respondent: | No solicitor |
| Solicitor for the Second Respondent: | Ms Nanson |
| Solicitors for the Second Respondent: | Australian Government Solicitor |
ORDERS
The Application for leave to appeal against the decision of the Social Security Appeals Tribunal made on 4 June 2010 is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Morgan & Marsh is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 5341 of 2010
| MR MORGAN |
Applicant
And
| MS MARSH |
First Respondent
| CHILD SUPPORT REGISTRAR |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicant seeks the leave of the Court to appeal against the decision of the Social Security Appeals Tribunal made on 4th June 2010. The Applicant requires leave because the appeal is out of time. The application for leave to appeal is opposed.
Background
On 4th December 2009 an objections officer of the Child Support Agency allowed an objection to a decision made by a senior case officer on 11th September 2009. The senior case officer made a departure determination on 11th September 2009 that:
For the period 1 October 2009 to 30 June 2011, the adjusted taxable income for Mr Morgan is to be set at $71,585.00.
On 4th December 2009, the objections officer allowed an objection to that decision and varied the departure determination so as to provide that:
For the period 1 October 2009 to 31 December 2011, Mr Morgan’s annual adjusted taxable income is set at $75,466.00.
On 22nd February 2010 the Applicant appealed to the Social Security Appeals Tribunal against that decision.
The appeal was heard on 25th May 2010. The Applicant attended the hearing and gave evidence. Ms Marsh attended by telephone.
The Tribunal made its decision in writing on 4th June 2010. The Tribunal set aside the decision under review and substituted its decision that:
· For the period 1 October 2009 until 30 June 2010 Mr Morgan’s adjusted taxable income is set at $71,000.00.
· For the period 1 July 2010 until 30 June 2011 Mr Morgan’s adjusted taxable income is set at $73,485.00.
The Applicant did not lodge an appeal against the decision of the Tribunal within the prescribed period of 28 days. He first sought to do so on 20th October 2010.
On 24th August 2010 the Child Support Registrar filed a Summons under the provisions of s.113 of the Child Support (Registration and Collection) Act, seeking to recover an unpaid child support debt of $12,122.56 and late payment penalties of $1,438.63 as at 24th August 2010. Those proceedings are still pending.
On 20th October 2010 the Applicant filed a Notice of Appeal, seeking to appeal against the decision of the Social Security Appeals Tribunal. The Notice of Appeal was returnable before this Court on 1 February 2011. It did not mention Ms Marsh.
The Notice of Appeal was superseded by an Amended Notice of Appeal, filed on 27th January 2011. The Amended Notice of Appeal correctly named Ms Marsh as a Respondent. The Amended Notice of Appeal was returnable on 8th March 2011.
The Notice of Appeal is out of time. Whilst a party to a proceeding before the Social Security Appeals Tribunal may appeal to a Court having jurisdiction under the Child Support (Registration and Collection) Act 1988 on a question of law (s.110B), the appeal must be instituted in a court within the time prescribed by the applicable Rules of Court (s.110C(1)).
The applicable Rules of Court are the Federal Magistrates Court Rules 2001. The appeal must be filed within 28 days of receiving a written statement of reasons for the decision under subsection 103X(3) or (5) of the Act (see Rule 25A.06). It can be seen that the appeal should have been filed early in July 2010.
On 6th April 2011 the Applicant filed an Application in a Case, seeking leave to appeal out of time. The Application was accompanied by an affidavit sworn or affirmed by the Applicant on 4th April 2011. The affidavit contains the grounds upon which the Applicant relies for leave to appeal out of time.
Evidence and Submissions
The Applicant submitted that the decision of the Tribunal was wrong because it had failed to give proper consideration to the evidence. He had asked for an extension of time to provide a valuation but the Tribunal would not allow the extension. He relied on the matters raised in his affidavit as to why he should be given leave to appeal out of time.
The Child Support Registrar opposes leave being granted on the grounds that:
a)None of the matters in the Applicant’s affidavit justify a grant of leave; and
b)The Amended Notice of Appeal does not raise any question of law. The points made go entirely to the factual merits of the Applicant’s claim.
In his affidavit of 4th April 2011 the Applicant deposes that over the previous two and a half years he had been involved in six other legal matters as well as the child support proceedings and, as a result, certain evidence upon which he sought to rely was not readily available to him. He stated that he had to attend different courts almost every month.
The Applicant went on to detail the legal proceedings. I set out an edited quotation from his affidavit, deleting the names of the various parties for reasons of their privacy. The identity of the parties is not in any event a matter of relevance.
The Applicant set out the various proceedings as:
(i)Claim by G[1]regarding Property Settlement (Settled October 2008…)
(ii)Claim by A to Fair Work Ombudsman for unfair dismissal and disputes over his termination payment. (Dismissed in September 2010).
(iii)Police charges against A for an assault on Mr Morgan which took place on 31st August 2009. (A was convicted in February 2010).
(iv)Civil Claim by D (Solicitor) regarding unpaid legal fees. Statement of Liquidated Claim was made in March 2009. (Order made by Gosford Local Court on the 7th September 2010)
(v)Costs Assessments process lodged with the Supreme Court by Mr Morgan in regards to the Legal Fees charged by D (Cost Assessment process concluded in September 2010 on the grounds that the application was made outside of the timeframe)
(vi)Demand by Australian Taxation Office for payment of over $40,000.00 debt on Integrated Client Account of [account name omitted], being the company which Mr Morgan is a [position omitted] and is the entity conducting Business as [occupation omitted]. (Application for remission of Interest was successful in May 2009).[2]
[1] Name deleted
[2] Affidavit by Mr Morgan 4.4.2011 at paragraph [2]
The Applicant went on to depose about the steps he had taken in relation to the decision of the Social Security Appeals Tribunal decision:
3. Upon receipt of the Social Security Appeals Tribunal (SSAT) on 7th July 2010, I immediately lodged a Formal Complaint by way of email. On the 27th July 2010 the SSAT responded to that complaint by way of their letter dated 27th July 2010.
4. I did not receive the letter referred to in Paragraph 3 until 7th August 2010. This is evidenced by my email to Michelle Lacy from the Australian Government Solicitors (AGS), sent on the 5th August 2010, who had rang me regarding enforcement action being commenced by the AGS.[3]
[3] Affidavit of Mr Morgan 4.4.2011 at [3]-[4]
Conclusions
The Social Security Appeals Tribunal made its decision on 4th June 2010. The Applicant had 28 days from the time he received a written statement of the Tribunal’s reasons for decision in which to lodge an appeal to this Court. Curiously, he claims that he did not receive the decision until 7th July 2010, more than a month later. What he did, according to his affidavit, was to make a formal complaint to the Tribunal by way of email. Whatever the purpose of the emailed complaint was, it does not constitute an appeal to this Court.
The Applicant sets out a number of other matters which he claims took his attention at the time of the appeal to the Social Security Appeals Tribunal. The appeal was heard by the Tribunal on 25th May 2010 and the decision was made on 4th June.
The various matters to which the Applicant refers do not appear to have taken place at or about the relevant time of the Social Security Appeals Tribunal appeal.
It is difficult to see how property proceedings that were settled in October 2008 could have had any effect on the Applicant’s ability to lodge an appeal to this Court in June or July 2010.
The claim by the person A to the Fair Work Ombudsman was dismissed in September 2010, well past the date by which an appeal should have been lodged.
The alleged assault by A on the Applicant is said to have taken place on 31st August 2009 and the person was convicted in February 2010. Those matters were finalised well before the Social Security Appeals Tribunal proceedings in May and June 2010.
The claim by the solicitor D for unpaid legal fees was commenced in March 2009 and finalised on 7th September 2010. Similarly, what appears to have been an application by the Applicant to have D’s costs taxed was dismissed in September 2010 because it was out of time.
The claim by the Australian Taxation Office appears to have been resolved in the Applicant’s favour in May 2009, a year before the appeal was heard by the Social Security Appeals Tribunal.
The other proceedings referred to by the Applicant do not, either individually or collectively, establish any reasonable explanation for the Applicant’s failure to lodge an appeal in time. His actions in forwarding a formal complaint by email to the Social Security Appeals Tribunal does not constitute any reasonable attempt tot appeal the decision.
The Applicant’s Amended Notice of Appeal sets out the grounds upon which he seeks to rely if he were to be given leave to appeal.
The first ground is a repeat of the reference to other legal proceedings in which the Applicant deposed that he was involved.
The second, third, fourth, fifth and sixth grounds refer to the Applicant’s factual claims or are more in the nature of a submission. No questions of law are raised.
Section 110B of the Child Support (Registration and Collection) Act 1988 provides that:
A party to a proceeding before the SSAT under Part VIII may appeal to a court having jurisdiction under this Act, on a question of law, from any decision of the SSAT in that proceeding.
The Applicant’s Notice of Appeal does not raise any question of law. Accordingly, even if leave to appeal were granted, the appeal would be futile.
However, the Applicant has not provided any reasonable explanation for the delay in lodging an appeal to this Court against the decision of the Social Security Appeals Tribunal made on 4th June 2010.
The application for leave to appeal is refused.
The Court will hear submissions on costs.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 29 July 2011
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