Pullman and Child Support Registrar (Child support)

[2018] AATA 4523

Pullman and Child Support Registrar (Child support) [2018] AATA 4523 (12 November 2018)

DIVISION:Social Services & Child Support Division

EXTENSION APPLICATION

NUMBER:2018/CC015028

APPLICANT:  Mr Pullman

OTHER PARTY:  Child Support Registrar

DATE DECISION MADE:                12 November 2018

APPLICATION:

An extension application made on 13 September 2018 asking the AAT to consider the application for AAT first review of a decision of the Child Support Registrar on 29 August 2017 despite the period for applying for review having ended.

DECISION:

The extension application is refused.

CATCHWORDS

CHILD SUPPORT – extension of time for lodgement of application for review – no satisfactory explanation for the delay – not devoid of merit – extension of time refused

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.

STATEMENT OF REASONS

1. Mr Pullman and [Ms A] are the parents of [Child 1]. By letter dated 29 August 2017, the Child Support Agency (CSA) wrote to Mr Pullman to advise him that his objection had been “partly allowed”.

2. There is a time limit to apply for “AAT first review”: see section 90 of the Child Support (Registration and Collection) Act 1988 (the Registration Act), and paragraph 29(1)(d) of the Administrative Appeals Tribunal Act 1975 (the Act).  Mr Pullman was required to make his application within 28 days of receiving the decision letter of the objections officer dated 29 August 2017.

3. Mr Pullman made application for AAT first review on 13 September 2018, more than 12 months after the decision. In his written application to the Tribunal, Mr Pullman advised that, “I was originally told that I could only apply for a further objection once my tax return was in. I have lodged my tax return and confirmed that my business did not trade in the allocated period”.

4. 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 (Gallo) 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 …

5. 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 under the following headings:

   ·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 … or of established practices”.

Explanation for the delay

1. Mr Pullman indicated he was of the misunderstanding that he required his tax return in order to bring an application to the Tribunal.

2. In a file note dated 1 June 2017 (prior to the objection decision being made), the following was recorded:

   …

   Mr Pullman called to request the tel for SSAT

   Mr Pullman was advised he needs to take the matter further and call the SSAT

   I called SAS spoke to CSO who advised he will first need to object to the decision in writing within 28 days.

   I explained to Mr Pullman where to find objection and advised he needs to object within 28 days of receiving the decision

   I explained if he is still not happy with the outcome once the objection has been handed down - he can then take this to the SSAT and the tel number will be noted on the objection decision letter

   Mr Pullman understood

   …

3. The letter dated 29 August 2017 clearly advised Mr Pullman of his right to apply to the Tribunal within 28 days of receiving the decision. There is nothing in the materials suggesting he had been wrongly advised by the CSA that he could not bring an objection until his tax return had been completed.

4. The Tribunal does not accept Mr Pullman has a satisfactory explanation for the delay. The Tribunal observes the delay here is very significant.

Merits of the objection

10.  Departure determinations, by their very nature, involve a relatively high degree of discretion. Whilst the CSA decision, on its face, appears reasonable on the available evidence, it cannot be suggested any application by Mr Pullman, if permitted to proceed, would be devoid of possible merit.

Potential prejudice to [Ms A]

11.  The Tribunal finds this factor a particularly weighty factor against granting an extension of time.

12.  [Ms A] may suffer prejudice if an extension of time was granted. She was entitled to rely and budget on the assessment in the absence of an application by Mr Pullman within the 28 day period. The delay here is very material; any retrospective adjustment to the assessment in Mr Pullman’s favour could potentially result in an overpayment for [Ms A].

Public interest considerations

13.  Parliament has seen fit to set a 28 day time limit for the lodgement of objections so that parents (and the CSA) can act with certainty as to the outcome when the objection period has elapsed. The public has an interest in reviews of decisions made by the CSA being performed in a timely fashion and in a manner that ensures all applicants are treated fairly and equally. Accordingly, an extension of the time for objection is not to be automatically granted.

Conclusion

14.  The Tribunal does not consider Mr Pullman has a satisfactory explanation for what is a very lengthy delay. Critically, it would potentially be very unfair to [Ms A] - who has relied on the assessment - for an application to be permitted to proceed. 

15.  In weighing all the relevant factors, the Tribunal concludes that the interests of justice are best served by refusing to grant an extension of time.

16.  The Tribunal observes it is open for Mr Pullman, at any time, to approach the CSA and make a fresh application for a “change of assessment” on the basis of new evidence or a material change in circumstances.

Member S Letch