Re Hollas and Child Support registrar and Simon Rockliff
[2002] AATA 480
•17 May 2002
DECISION AND REASONS FOR DECISION [2002] AATA 480
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2002/126
GENERAL ADMINISTRATIVE DIVISION )
Re Yasmin Holas
Applicant
And Child Support Registrar
1st Respondent
And Simon Rockliff
2nd Respondent
DECISION
Tribunal Mr G A Mowbray
Date17 May 2002
PlaceCanberra
Decision For reasons given orally at the hearing on 17 May 2002, the Tribunal refuses to exercise its discretion under section 41(2) of the Administrative Appeals Tribunal Act 1975 to order a stay of the operation or implementation of the decision under review.
..............................................
Member
CATCHWORDS
Stay application – correct test for determining whether to grant a stay – relevant factors
Administrative Appeals Tribunal Act 1975 ss 41(1), 41(2)
Child Support (Assessment) Act 1989 Part 6B
Migration Act 1958 ss 482(2), 482(3) (as in force prior to October 2001)
Madafferi v Minister for Immigration and Multicultural Affairs (2001) 106 FCR 76; 184 ALR 473; 63 ALD 373
Madafferi v Minister for Immigration and Multicultural Affairs [2001] FCA 320.
Hunter Valley Developments v Cohen (1984) 3 FCR 344; 58 ALR 305; 7 ALD 315
REASONS FOR DECISION
19 June 2002 Mr G A Mowbray
The application before the Tribunal is for a stay of a reviewable decision of the Child Support Registrar. That decision, made on 8 March 2002, was to grant an extension of time under section 98ZE of the Child Support (Assessment) Act 1989.
Background
Ms Holas is a person liable to pay child support to Mr Simon Rockliff for one of their children following acceptance by the Child Support Agency (CSA) of an application for child support by Mr Rockliff made on 8 January 2002. By a letter dated 15 January 2002 Ms Holas was required to pay child support in accordance with an assessment calculated by the formula in the Child Support (Assessment) Act 1989. Mr Rockliff was advised of the acceptance of that application by letter dated 15 January 2002.
On 15 January 2002, that is the same day, Ms Holas supplied details of consent orders made at the Family Court at Canberra on 6 June 1997 constituting a child support agreement affecting the child support assessment. Based upon the terms of these orders an amended assessment was raised requiring no payment. The amended nil assessment was forwarded to both parents by letter on the same day, that is 15 January 2002.
On 22 January 2002 Mr Rockliff rang the CSA to clarify the details of the assessment. He was advised that an assessment reflecting sole care requiring payment of child support was in place and the CSA officer made a note of that call. On 22 February 2002 Mr Rockliff rang again to confirm the level of the assessment. Mr Rockliff was advised the assessment had been amended to nil and the officer would check whether this was correct.
On 25 February 2002 the CSA officer rang Mr Rockliff and advised that he should object to the nil assessment. On the same day Mr Rockliff lodged an objection to the decision of 15 January 2002. He was subsequently advised, on 8 March 2002, that an extension of time application would be required. On that same day he lodged an application for an extension of time. Also on that day a decision was made to grant the extension. Both parents were advised in writing.
On 27 March 2002 Ms Holas lodged an application for review of the decision to grant the extension of time. The reasons for that application were
"There was no consultation with me by the Child Support Agency prior to the making of the decision to grant my former husband an extension of time to lodge an application/objection to the assessment of child support. The decision is wrong. My former husband should have complied with the prescribed time requirement for lodging an application/objection. There is no valid reason or evidence available to support the decision. Child Support has told me it would be a breach of privacy for them to disclose the reasons advanced by my former husband in seeking an extension of time."
On 13 May 2002 Ms Holas lodged a stay application with the Tribunal, the grounds for which were
"The decision could have detrimental effects on me financially if I am obliged by the CSA to pay child support when ultimately I am not required to."
On 15 May 2002 Mr Rockliff was made a party to these proceedings without objection by either Ms Holas or the Child Support Registrar.
Hearing of the Stay Application
A telephone hearing on the stay application was held on 17 May 2002. Ms Holas and Mr Rockliff presented submissions on their own behalf and Ms Pulford appeared for the Child Support Registrar. At the end of the hearing I gave an oral decision refusing the stay. I informed all the parties that the reasons for decision were being recorded and that written reasons would be provided if requested. The Tribunal received such a request from Ms Pulford on 23 May 2002. Accordingly these written reasons have been prepared based on the reasons given at the hearing with appropriate editing.
The documentary evidence before the Tribunal consisted of the "T-documents" lodged under section 37 of the Administrative Appeals Tribunal Act 1975 (labelled T1 to T14) and exhibits R1 to R3.
The relevant legislative provisions are quoted below as necessary, but can be summarised as follows
Administrative Appeals Tribunal Act 1975 ("the AAT Act"), section 41(1) and (2)
Child Support (Assessment) Act 1989, Part 6B, especially sections 98Z, 98ZA, 98ZB, 98ZC, 98ZD, 98ZE and 98ZG
Migration Act 1958, section 482(2) and (3), as in force prior to October 2001.
The test for granting a stay
Section 41(2) of the AAT Act relevantly provides that
"The Tribunal or a presidential member may, on request being made… by a party to a proceeding before the Tribunal… if the Tribunal or presidential member is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review, make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates… as the Tribunal or presidential member considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review."
Until last year it seemed clear how section 41(2) should be construed in determining stay applications. That is, the test was similar to that applied by the courts when requested to order a stay. However, in Madafferi v Minister for Immigration and Multicultural Affairs (2001) 106 FCR 76; 184 ALR 473; 63 ALD 373 the Full Federal Court considered a similarly worded provision in section 482(2) and (3) of the Migration Act 1958. Those provisions have subsequently been repealed but at the time they provided
"(2) If an application is made to the Federal Court under section 476 or 477 in relation to a judicially-reviewable decision, the Federal Court or a Judge of the Federal Court may make such orders of the kind referred to in subsection (3) as that Court or Judge considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the appeal.
(3) The orders that may be made under subsection (2) are orders staying, or otherwise affecting the operation or implementation of the judicially-reviewable decision, or a part of that decision."
The relevant wording of these provisions is almost exactly the same as section 41(2) of the AAT Act. In Madafferi the Full Federal Court construing the Migration Act provisions set a much narrower test than that conventionally used by the courts in considering stay applications
"[18] …The question, however, is whether the mere detention of the applicant pending the final determination of the substantive proceeding could in any way impact upon the effectiveness of the hearing and determination of the substantive proceeding.
…
[23] …[T]here is no indication in the affidavit as to how that inconvenience, distress and loss would impact on the conduct of the substantive proceeding, if at all. There does not appear to have been any suggestion that any financial "punishment" would interfere in any way with the capacity of the applicant to prosecute the substantive proceeding. Nor is there any explicit suggestion that being in custody would impede the ability of the applicant to give instructions in connection with the substantive proceeding.
[24] It is difficult to see how s 482(2) is attracted in the circumstances of the evidence before the primary judge. His Honour does not appear to have addressed the question of whether the detention of the applicant will impact in any way on the effectiveness of the hearing and determination of the appeal. That is the primary question that arises under s 482(2). To that extent, His Honour appears to have erred in principle…"
On the following day a new stay application was made before a single judge of the Federal Court: Madafferi v Minister for Immigration and Multicultural Affairs [2001] FCA 320. Justice Marshall had this to say about the test
"[8] … [T]he import of the Full Court's reasoning is inconsistent with Madgwick J's approach in Ooi. On reflection, and with the benefit of the Full Court's reasons, I consider that Halmi is capable of being read as supporting the view that "effectiveness" for the purposes of s 482(2) is limited to what might be called the due accomplishment of the actual processes of the hearing and determination of the application.
[9] I consider that the Full Court has effectively adopted "the due accomplishment" approach in its decision of 15 March 2001…
…
[13] In my view, the effect of the Full Court judgment… is to emphasise that securing the effectiveness of the hearing and determination of the application is tied to securing the processes of the hearing and the processes of the determination. Section 482(2) of the Act is a provision akin to one that enables the Court to act to preserve the subject matter of the litigation during the hearing of a matter and up until it is finally determined.
…
[15] In my view, further guidance in the interpretation of s 482(2) of the Act can be obtained from Patrick Stevedores by focusing on the importance of securing the effectiveness of the jurisdiction invoked to prevent the frustration of the Court's processes. For example, it would be consistent with s 482(2) of the Act for the Court to act to prevent a decision by the Minister which sought the removal of Mr Madafferi from Australia or sought to have him in detention when he might have been required to instruct Mr Hurley." (emphasis original)
These decisions of the Full Court and of Justice Marshall make it absolutely clear that the comparable provision in section 482 of the Migration Act was designed to prevent prejudice to the processes of the hearing and the process of determination of the appeal.
In my view I am bound to apply the narrower test set out in the Madafferi cases. The only distinguishing feature between the two sets of provisions is that the old section 482 of the Migration Act concerned judicial review proceedings whereas section 41(2) of the AAT Act relates to merits review. I can see no reason why this distinction would justify rejecting the application of the Madafferi test to section 41(2) of the AAT Act.
Application of the Madafferi test
Many of Ms Holas' submissions were directed to the broader test, in which any prejudice to the substantive outcome of the application is examined, but not the narrower Madafferi test. She did, however, raise some considerations which she said would prejudice the conduct of the proceeding before the Tribunal for review of the Child Support Registrar's decision to grant an extension of time to Mr Rockliff. First, she submitted that if the CSA went ahead and considered Mr Rockliff's objection, "pure logic" suggests this would prejudice the hearing of the extension of time review. It would be in people's minds that the CSA had already made a decision, and a decision by the Tribunal on the extension of time would be a nonsense as the CSA may have already upheld the objection.
The second point made by Ms Holas was that allowing the CSA to proceed would place additional stress on her. This would impact adversely on the hearing. Also, it should be borne in mind that a person should be required to comply with the requirements of the law in lodging an objection.
I can see how it might be possible in very particular circumstances for these two factors to operate to prejudice the processes or conduct of the hearing and/or the processes of determination. However, on the evidence before me and bearing in mind the submissions made to me, I am not of the opinion that it is desirable to grant a stay. Applying the Madafferi test, I do not believe that a stay is either necessary or appropriate to secure the effectiveness of the hearing and determination of the application for review.
Application of the broad test
However, if I am wrong on the test to be applied and I am required to apply the broader test, I am of the view that the result would be the same for the reasons set out below.
This approach involves the balancing of a number of factors and a determination whether, after weighing these factors, it is desirable to grant a stay. It is a matter of discretion for the decision maker, but the general rule is that there is no automatic right to a stay. A decision appealed from is considered prima facie to be correct and the Tribunal should not deprive a party of the fruits of that decision.
The first factor is whether there are arguable grounds for the review application. It must be remembered in this case that the review application relates to the grant of an extension of time, rather than the substantive child support assessment matter.
Ms Holas submitted that she has a strong case, evidenced by the material in the T-documents, her commitment to the proceedings and having paid the required fee. With due respect to Ms Holas, her commitment to the proceedings and having paid the fee do not in any way evidence the strength of the case. Mr Rockliff, on the other hand, also submitted that he has a strong case. This submission was supported by the Child Support Registrar.
In looking at the strength or merits of the case for an extension of time for the purposes of the stay application, I have to look at the various factors that are relevant in deciding extension of time cases. These are broadly set out in the CSA's own guidelines at T14, page 30. The Tribunal is not bound by the CSA guidelines but should give significant weight to them. They follow the well-known principles considered by Justice Wilcox in Hunter Valley Developments (1984) 3 FCR 344; 58 ALR 305; 7 ALD 315. The same principles are also broadly set out in The Australian Administrative Law Service (edited by Pearce) at [239A]. I propose to take the various factors listed there and consider their relevance to this case based on the material that is before me.
The first factor to consider for an extension of time is the strength of the applicant's case in the substantive matter. In this context, this refers to the strength of Mr Rockliff's case for an objection to the child support assessment. Mr Rockliff and Ms Pulford for the Child Support Registrar both submitted that Mr Rockliff has a strong case. Ms Holas submitted that this case is weak. On the evidence available it is clear to me that Mr Rockliff at least has an arguable case for his objection.
The second consideration is whether there is a significant issue of public interest to be determined. That factor is not relevant in this matter.
I will take the third and fourth factors together. They relate to potential financial loss and prejudice to the respondent or other persons affected by the decision if the extension of time is confirmed. Ms Holas raised several matters which she said would prejudice her. First, she said that she may be required to pay child support which later may need to be repaid to her. Ms Holas was concerned that she may not be able to recover that money.
However, Ms Pulford submitted that section 79 of the Child Support (Registration and Collection) Act 1988 would allow the CSA to recover that money and repay Ms Holas in those circumstances. Even if it were not possible to recover it from Mr Rockliff, CSA would still reimburse Ms Holas.
The second prejudice to which Ms Holas referred was the time commitment she would need to devote to the matter and the stress that this would place on her. Thirdly, she would need time to lodge submissions on the objection which the CSA had already started processing. CSA was in fact out of time in finalising the objection. Ms Pulford, in response, indicated that the CSA would allow 28 days for submissions from Ms Holas.
There are also possible prejudices and financial implications for Mr Rockliff if the extension of time is overturned. These were raised by both Mr Rockliff and Ms Pulford. First, he currently has the care and support of the child. Secondly, there would be no scope for review, nor would there be any scope for Mr Rockliff to make a new application. These considerations of prejudice and financial consequences to both Ms Holas and Mr Rockliff are matters that have to be weighed in the overall balance.
The next consideration in granting an extension of time is whether an applicant has rested on his or her rights. The evidence currently available to me indicates that Mr Rockliff lodged applications with the CSA a very short time after the change in the child support assessment was positively confirmed to him and after being advised of the need for an application for an extension of time.
A further consideration is the length of delay. Mr Rockliff's objection was only a matter of three or four days outside the time limit.
The next factor is misinformation of rights. The Child Support Registrar does not dispute that the CSA misinformed Mr Rockliff of his rights.
The other considerations that are set out in The Australian Administrative Law Service for determining whether an extension of time is to be granted are not relevant to the matter currently before the Tribunal.
I have to balance the various considerations to which I have referred above in evaluating whether there is any merit in Mr Rockliff's extension of time application. Having done that, in my view the prospects for Mr Rockliff of his extension of time being upheld are very good. To put it another way, the prospects of Ms Holas succeeding in having the extension of time overturned are not particularly strong.
But even if it is accepted that there are arguable grounds for the review application, that is, Ms Holas' application to the Tribunal, that in itself is not sufficient for the exercise of the discretion to stay the decision. One also needs to point to circumstances that warrant departure from the general rule that a decision under review is presumed to be correct. I have already considered some of these in looking at the test for extension of time.
The circumstances themselves do not need to be "special" or "exceptional". For example, it is relevant if the application for review would be rendered nugatory without a stay. In this particular case, I accept that refusing to grant a stay may cause some form of prejudice but it does not render the matter nugatory.
A further consideration is whether refusal of a stay would deprive an applicant of the means of prosecuting the application for review. I have already considered this issue under the Madafferi test. I am of the view that it would not prejudice the applicant in pursuing her application to have the extension of time overturned. Furthermore, I do not believe that failure to grant a stay would impose irreparable harm should Ms Holas ultimately prove to be successful before the Tribunal.
I have already considered other matters, such as the hardship to both relevant parties, the likelihood of recovery of moneys and the prospects of success.
Therefore, in applying the broader test and balancing the various considerations, I am also of the view that it is not desirable to grant a stay. It would not be appropriate for securing the effectiveness of the hearing and determination of the application for review.
Decision
In my view Mr Rockliff should not be deprived of the fruits of his extension of time at this stage, that is without a full hearing by the Tribunal. Therefore, my decision is to refuse the stay application by Ms Holas.
I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of Mr G A Mowbray
Signed: .....................................................................................
AssociateDate of Hearing 17 May 2002
Date of Decision 17 May 2002
Date of Written Reasons 19 June 2002
Counsel for the Applicant Self-represented
Advocate for the 1st Respondent Ms Anne Pulford
Solicitor for the 1st Respondent Legal Services, Child Support
Counsel for the 2nd Respondent Self-represented
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