RLDY and Child Support Registrar (Child support second review)
[2020] AATA 688
•30 March 2020
RLDY and Child Support Registrar (Child support second review) [2020] AATA 688 (30 March 2020)
Division:GENERAL DIVISION
File Number(s): 2019/2215
Re:RLDY
APPLICANT
AndChild Support Registrar
RESPONDENT
AndPGFF
OTHER PARTY
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:30 March 2020
Place:Sydney
The decision under review is affirmed.
...................[sgd].........................
Chris Puplick AM, Senior Member
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.
CATCHWORDS
CHILD SUPPORT – Extension of time application – whether there is an acceptable explanation for the delay – time of receipt of administrative decision -- merits of substantial application – prejudice to others – extension of time application refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 29
Acts Interpretation Act 1901 (Cth) ss 28A, 29
Child Support (Registration and Collection) Act 1988 (Cth) ss 90(2), 91(3)
Child Support (Assessment) Act 1989 (Cth) ss 98B, 98C, 117
Electronic Transactions Act 1999 (Cth) ss 9, 14ASocial Security (Administration) Act 1999 (Cth)
CASES
BHC16 V Minister for Immigration and Border Protection [2019] FCA 1326
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Brown v Federal Commissioner of Taxation [1999] FCA 563
Crick and Prosegur Australian Pty Ltd [2016] AATA 313
Duong v Australian Postal Corporation [2005] FCA 991
Hillman v Australian Postal Corporation [2017] AATA 1411
Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment (1984) 3 FCR 344
Jackamarra v Krakouer (1998)195 CLR 516
Jamal v Secretary, Department of Social Services [2018] FCA 513
Kuljic v Secretary, Department of Social Security (1994) 33 ALD 121
McPherson and Secretary, Department of Social Services [2020] AATA 12
Phillips v Australian Girls’ Choir [2001] FMCA 109
Polydorou v Secretary, Department of Social Services [2014] FCA 1059
Shi v Migration Agents Registration Authority [2008] HCA 31
Somba v Minister for Home Affairs (Migration) [2020] AATA 425Zizza v Federal Commissioner of Taxation [1999] FCA 848.
SECONDARY MATERIALS
Child Support (Assessment) Regulations 2018 (Cth) reg 19(1)
REASONS FOR DECISION
Chris Puplick AM, Senior Member
30 March 2020
THE REVIEWABLE DECISION
This is an application for a review of a decision made by the Social Services and Child Support Division of this Tribunal (“AAT1”) to refuse an extension of time to RLDY (“the Applicant”) to seek review of a decision made by the Child Support Registrar (“the Respondent”) regarding the Applicant’s child support payment obligations.
The reviewable decision is that of the AAT1 which was made on 15 April 2019.
The Applicant lodged an application for review of this AAT1 decision on 23 April 2019 and the matter was heard by this Tribunal by telephone on 18 March 2020. The Applicant appeared by telephone from Singapore and PGFF (“the Other Party”) from Western Australia.
The original decision of the Respondent, which the Applicant seeks ultimately to have reviewed, was made on 3 August 2018. That decision is not a matter of direct concern to this Tribunal which is concerned solely to make a decision in relation to the extension of time application. The only matter of relevance in this instance is that this original decision was made under the provisions of the Child Support (Registration and Collection) Act 1988 (Cth) (“the Act”) and hence it is the provisions of that Act which determine the time requirements for making extension of time decisions.
The Other Party, the Applicant’s ex-wife, is a party to these proceedings only to the extent that her interests are affected, in that a grant of an extension of time would mean that the final determination of the Applicant’s child support obligations would be delayed until a final determination of his appeal against the 3 August 2018 decision.
TIME LIMITS
The decision of the Respondent was made on 3 August 2018 and transmitted to the Applicant electronically on 6 August 2018.
In most instances of extension of time applications which are made under subsection 29(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”), an application for review must be made within 28 days of being served with notice of the decision. However, under subsection 90(2) of the Act (the relevant Act in this matter), if a person is a resident of a reciprocating jurisdiction, an application for review of a decision must be made within the period of 90 days, starting on the day on which the notice of decision is served on or given to the person.
If the period in which to apply for AAT review has ended, a person may make a written application for an extension of time, in accordance with section 91 of the Act. Subsection 91(3) displaces the relevant sections of the AAT Act (subsections 29(7) to 29(10)) in this instance.
The Applicant is currently resident in Singapore which is, for the purposes of the Act, a “reciprocating jurisdiction”.
In these circumstances, with the date of transmission of the decision being 6 August 2018, the 90 day period expired on 4 November 2018. The Applicant lodged an appeal against the original decision on 5 December 2018 (31 days out of time) and an appeal for an extension of time on 12 December 2018 (38 days out of time).[1]
[1] The AAT 1 gives this as 37 days out of time. Section 37 Tribunal Documents (T Documents) at page 12.
EXTENSIONS OF TIME: PRINCIPLES
The Tribunal approaches consideration of extension of time applications bearing in mind the strictures of McHugh J in the High Court case of Brisbane South Regional Health Authority v Taylor.[2] His Honour gave four reasons why statutory time limitations are an important part of the legal process. He noted that:
First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even “cruel”, to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them.
The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible.
[2] (1996) 186 CLR 541 at [552]-[553]. Footnotes and citations omitted.
His Honour also noted that:
An applicant for an extension of time who satisfies those conditions [i.e. the conditions laid down in the relevant Act] is entitled to ask the court to exercise its discretion in his or her favour. But the applicant still bears the onus of showing that the justice of the case requires the exercise of the discretion in his or her favour.[3]
The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension.[4]
[3] Ibid at [551].
[4] Ibid at [554].
It is generally accepted that the “check-list” outlined by Wilcox J in Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment[5] should be taken as the guide by this Tribunal in determining extension of time matters.
[5] (1984) 3 FCR 344.
That list provides as follows:
·an applicant must show an “acceptable explanation of the delay” and that it is “fair and equitable in the circumstances” to extend time;
·a distinction is to be made between an applicant who has “rested on his rights” and allowed the decision-maker to believe that the matter was finally concluded, and one who has continued to make the decision-maker aware that he or she contests the finality of the decision;
·any prejudice to the respondent caused by the delay;
·whether any others or the general public would suffer any prejudice as a result of the extension, or established practices be upset;
·the merits of the substantial application; and
·“considerations of fairness as between the applicant and other persons” in a similar position.
Wilcox J did, however, warn that:
Although the section [s 11 of the Administrative Decisions (Judicial Review) Act] does not, in terms, place any onus of proof upon an applicant for extension, an application has to be made. Special circumstances need not be shown, but the court will not grant the application unless positively satisfied that it is proper so to do. The “prescribed period”….. is not to be ignored.” (Ralkon v Aboriginal Development Commission (1982) 43 ALR 535 at 530). Indeed it is the prima facie rule that proceedings outside that period will not be entertained (Lucic v Nolan (1962) 45 ALR 411 at 416). It is a precondition to the exercise of discretion in his favour that the applicant for extension show an “acceptable; explanation of the delay” and that it is “fair and equitable in the circumstances” to extend time. (Duff v Freijah (1982) 43 ALR 479 at 485; Chapman v Reilly, Neaves J, 9 December 1983, not reported at p. 7)[6]
[6] Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment (1984) 3 FCR 344 at [348].
Without reciting judicial authority in detail, suffice to say that the Hunter Valley principles have been followed, with some minor variations or nuances in numerous subsequent cases.[7]
[7] Hillman v Australian Postal Corporation [2017] AATA 1411; Phillips v Australian Girls’ Choir[2001] FMCA 109; Duong v Australian Postal Corporation [2005] FCA 991.
Each case must, however, be determined on its own merits with regard to all the particular circumstances in which it arises. It is also important to note that, in each case:
“All of the circumstances of the case must be considered, the overriding consideration being whether it is reasonable in all the circumstances to grant the extension.”
The Tribunal must also consider each application de novo and with regard to all material before it at the time of hearing, including any material which might not have been available to the original decision-maker.[8]
APPLICATION OF THE HUNTER VALLEY PRINCIPLES
[8] Shi v Migration Agents Registration Authority [2008] HCA 31 at [37] per Kirby J.
1. Reasons for the delay
The Respondent made its original decision on 3 August 2018 (a Friday) and transmitted it to the Applicant on the following Monday, 6 August 2018. The decision was notified by electronic communications and sent to the Applicant’s MyGov account.[9]
[9] T Documents pages 23 and 37.
The Applicant contends that he had a conversation with the Department of Human Services (“the Department”) on 17 September 2018 in which he requested that he be sent a copy of the 3 August 2018 decision in the form of a letter addressed to him at a postal address in Singapore. He states further that this letter was received on 8 October 2018.[10] As a result, the Applicant formed the view that he had the right to seek a review of the decision within a 90 day period commencing from 17 September 2018. If this were to be the case, then his application for review of the AAT1 decision filed on 5 December 2018 and his subsequent application for an extension of time on 12 December 2018 were within that statutory period.
[10] Applicant’s Email to Tribunal dated 22 August 2019.
The Respondent’s position is that the notification of its decision was transmitted to the Applicant on 6 August 2018 in a form to which he had consented – namely, electronically to his MyGov account.
The use of such a means of communication is regulated by the Electronic Transactions Act 1999 (Cth) (“the ET Act”) which provides, inter alia:
14A Time of receipt
(1)For the purposes of a law of the Commonwealth, unless otherwise agreed between the originator and the addressee of an electronic communication:
(a) the time of receipt of the electronic communication is the time when the electronic communication becomes capable of being retrieved by the addressee at an electronic address designated by the addressee; or
(b) the time of receipt of the electronic communication at another electronic address of the addressee is the time when both:
(I)the electronic communication has become capable of being retrieved by the addressee at that address; and
(ii) the addressee has become aware that the electronic communication has been sent to that address.
(2)For the purposes of subsection (1), unless otherwise agreed between the originator and the addressee of the electronic communication, it is to be assumed that the electronic communication is capable of being retrieved by the addressee when it reaches the addressee’s electronic address.
(3)Subsection (1) applies even though the place where the information system supporting an electronic address is located may be different from the place where the electronic communication is taken to have been received under section 14B.
This means of communication requires the consent of the recipient party, by the provisions both of s 9(1)(d) of the ET Act
(d) if the information is permitted to be given to a person who is neither a Commonwealth entity nor a person acting on behalf of a Commonwealth entity—the person to whom the information is permitted to be given consents to the information being given by way of electronic communication.
And, in this case as provided by Regulation 19(1) of the Child Support (Assessment) Regulations 2018 (Cth) (“the Assessment Regulations”):
19 Service of notices etc.
(1) Any notice or other communication given by or on behalf of the Registrar under the Act may be served on a person:
(a) if the person is a natural person:
(i) by causing it to be personally served on the person; or
(ii) by leaving it at the person’s address for service; or
(iii) If the person has consented to receiving such notices or communications by way of electronic communication—by delivering the notice or other communication by means of electronic communication; or
(iv) by sending it by prepaid post to the person’s address for service;
(emphasis added).
Furthermore, any person who signs up for a MyGov account does so on the basis that this means consenting to receive all correspondence a Member Service (such as the Child Support Agency) decides to send via the MyGov inbox, unless he or she chooses to opt out.
The positions resolve themselves into this set of alternatives:
(1)The Applicant contends that under section 14A(1)(b)(ii) of the ET Act, the relevant date is the date he had “become aware” of the sending of the communication; namely 17 September 2018;
(2)The Respondent contends that as a result of the Applicant’s consent to receipt of advice electronically (ET Act section 9(1)(d) and Regulation 19(1)(a)(iii) of the Assessment Regulations) the date of receipt must be 6 August 2018. Furthermore, the Respondent relies upon section 14A(1)(a) of the ET Act to show that the correspondence was “capable of being retrieved” as of 6 August 2018.
In essence the Respondent maintains that the consent of the Applicant to receive information electronically means that section 14A(1)(b)(ii) of the ET Act no longer applies, since 6 August 2018 was the date upon which, had the Applicant opened his MyGov portal, he would have “become aware” of the decision in question.
The Respondent states in their Statement of Facts, Issues and Contentions (“SFIC”) dated 31 January 2020 that:
(23)The Applicant not accessing his online inbox was a choice. Whilst he ultimately requested that a hard copy of the objection decision be sent to him via post on 17 September 2018, he was not prevented from knowing the outcome of the objection decision from 6 August 2018 onwards.
(24)The Applicant contends that he requested on numerous occasions for all communication with the Agency to be in writing. The Registrar accepts that as being the case – see for example, T56/281, T57/329, T61/359, T69/423. However, in that same correspondence, the Applicant gave the option of such written communication being provided to him via his postal address or “via the MyGov portal”. At no stage did he opt out of dealing with the Department via electronic communication.
The Applicant effectively disputes the proposition that he has given his consent to the receipt of notifications and correspondence by means of electronic communication.
To this extent he draws attention to numerous items of correspondence between himself and the Department which, he claims, confirm that he expected to receive any departmental correspondence or advice by post.
However, there are numerous items of correspondence from the Applicant to the Department in the following terms:
“Please post the reference number for this compliant to the above address or send via the MyGov portal.”[11]
[11] T Docs at page 329 (2/2/18); page 426 (6/6/18); pages 455-457 (16/7/18); page 507 (29/8/18).
There is a more extensive request in the following terms:
“Please provide the reference numbers for this status request and the four matters listed below by way of post to the above address or send via the MyGov portal.”[12]
[12] Ibid page 346.
The Applicant claims that this means that he consented only to receipt of reference numbers at the MyGov portal and that all other correspondence was required to be by post. He thus claims that he opted out of receipt of other correspondence via MyGov.
The Applicant also points to numerous written requests to the Department for correspondence to be sent to a postal address (in Singapore).[13] There are responses from the Department confirming the use of the postal service to provide notifications to the Applicant.[14]
[13] Ibid page 133 (10/7/17); page 198 (13/11/17).
[14] Ibid page 184 (23/9/17); page 196 (27/10/17).
Interestingly, all these exchanges were in electronic form via the CSA Online system.
The Applicant finally submits that the Department acknowledged problems with various forms of electronic communication being encountered by the Applicant when it sent him a message stating, inter alia:
“The department is aware of an issue of our online system reverting to the log on screen when trying to upload documents. We apologise for this issue and hope t have it rectified as soon as possible. While I understand this may be an inconvenience, especially for our international customers, the option of faxing or posting information to the department remains available to you.”[15]
[15] Ibid page 289.
This correspondence, which refers to the Applicant’s ability to send material to the Department by post, notes immediately before the quoted extract:
“Dear (RLDY) Thank you for your online correspondence to (the Department)…”[16]
[16] Idem.
Again, both the correspondence and the reference to the Applicant’s correspondence makes it clear that this was all conducted electronically and not by post.
The Respondent contends that the Applicant’s claims and practice does not constitute some form of opt-out from use of MyGov and that, in any event, a person is either in or out of the MyGov system and cannot be “part in” in, or in for only some purposes and out for others.
The Respondent’s point is incontestable. The Applicant consented to use the use of the MyGov portal and it is not within his powers to designate that there are limits on its use. Once consent is given, and once a person is enrolled in the MyGov system it is up to the sending authority to determine what is sent and what is not.
All this raises an interesting point. Does the fact that a person can do something but does not do it, means that they are taken to have done it, although they did not?
The answer to that must be – yes. Deeming provisions in legislation make this clear.
For example, the Secretary draws the Tribunal’s attention to the decision of Mortimer J in Polydorou which explains the purpose of a similar deeming provision of section 237 of the Social Security (Administration) Act 1999 (Cth):
It is not difficult to understand the applicant’s bewilderment at the effect of a deeming provision such as s 237 of the Administration Act. Where continued access to social security payments depends on seeking review upon notification of an adverse decision, it is difficult for a person in the applicant’s position to understand how a legal fiction that he had notice of the adverse decision is allowed by the law to operate to his detriment. Nevertheless, that is what the Administration Act provides, for reasons no doubt related to consistent and predictable administration of the legislative scheme for social security payments.[17]
[17] Polydorou v Secretary, Department of Social Services [2014] FCA 1059 at [34]. See also McPherson and Secretary, Department of Social Services [2020] AATA 12 at [31]-[44] per Member S Evans.
However the Tribunal cannot see how the Respondent can derive comfort from reliance upon this decision given the specific wording of the relevant section of that Act differs markedly from the wording of the ET Act.
237 Notice of decisions
(1) If notice of a decision under the social security law is:
(a) delivered to a person personally; or
(b)left at the address of the place of residence or business of the person last known to the Secretary; or
(c) sent by prepaid post to the postal address of the person last known to the Secretary;
notice of the decision is taken, for the purposes of the social security law, to have been given to the person.
(2) Notice of a decision under the social security law may be given to a person by properly addressing, prepaying and posting the document as a letter.
(3) If notice of a decision is given in accordance with subsection (2), notice of the decision is taken to have been given to the person at the time at which the notice would be delivered in the ordinary course of the post unless the contrary is proved.
(4) This section only applies to notices of decisions, and nothing in this section affects the operation of sections 28A and 29 of the Acts Interpretation Act 1901 in relation to other notices under the social security law (for example, a notice that requires a person to inform the Department about some matter or a notice that requires a person to give the Secretary a statement about some matter).
Sending advice by the postal service is not the same as sending it electronically and, as Deputy President Boyle observed recently in Somba:
care must be taken when adopting principles from other cases to ensure that the context of and the purpose to which those principles are to be applied are comparable.[18]
[18] Somba v Minister for Home Affairs (Migration) [2020] AATA 425 at [28].
To understand the deeming provisions in this case it is necessary to follow the provisions of the ET Act. The Tribunal notes that the various provisions of the Acts Interpretation Act 1901 (Cth) dealing with the service of documents (s 28A) and deemed time of receipt (s 29), contains within section 28A a Note:
The Electronic Transactions Act 1999 deals with giving information in writing by means of an electronic communication.
This implies clearly that the provisions of the ET Act are to be taken as those governing forms of electronic correspondence, regardless of anything elsewhere provided.
Given that, section 14A(1)(a) of the ET Act is clear:
·The information was capable of being retrieved on 6 August 2018 (section 14A(1)(a));
·The electronic address had been designated by the addressee;
·The becoming aware provisions are not applicable because section 14A(1)(b) refers to “another electronic” address and in any event, the prior condition of s 14A(1)(a) has been met. Section 14A(1)(b) is only available in the alternative to the otherwise satisfaction of s 14A(1)(a).
There is no doubt as to the fact that the Applicant only became practically aware of the correspondence following the 17 September 2018 conversation. The evidence before the Tribunal is that, as of 10 January 2019 the Department’s records show that:
“Our records show that (RLDY) was sent his objection decision letter on 6 August 2018 via on line. CSA records list (RLDY) has not accessed this letter, he last read an on line letter on 17 March 2018. It was ascertained during a phone conversation on 17 September 2018 (RLDY) had not accessed this letter dated 6 August 2018 and a hardcopy was posted to him on 17 September 2018.”[19]
[19] T Documents page 22.
A screenshot copy of the Applicant’s MyGov record[20] and a departmental acknowledgement of the 17 September 2018 conversation[21] are before the Tribunal.
[20] Ibid page 23.
[21] Ibid page 22.
However, as the Respondent claims, this situation arose only because of the Applicant’s failure to access his MyGov portal. The ET Act deems that he was capable of doing so as of 6 August 2018 and his personal failure to act cannot be taken as either an excuse for not knowing or more importantly, as justification for setting aside, the deeming provisions of the ET Act.
Hence, although the Tribunal can appreciate that the Applicant believes he had a reasonable explanation for the delay and may have some sound basis for that belief in his own mind, the Tribunal cannot accept that it was an acceptable reason as referred to in the authorities.
2. Resting on rights
The Applicant did not rest on his rights to the extent that, once aware of the decision of the Respondent, he proceeded to lodge an appeal for a review of that decision.
3. Prejudice to the Respondent
The Respondent concedes that it would suffer no prejudice if the extension of time were granted.[22]
[22] Respondent’s SFIC at [35].
4. Prejudice to others
The Tribunal accepts that the Other Party has legitimate and proper interests in this matter being determined and brought to some finality.
PGFF has stated to the Tribunal that the Applicant “has failed to meet any court order of AAT decision EVER”[23] (emphasis in original). In her Application to be made a Party to a Proceeding (which was granted by the Tribunal) she asserts that the 2016 order “was supposed to be the final order for child support and no other changes.” She asserts that this is the sixth time that the Applicant has sought reviews through the Department.
[23] PGFF, Email to Tribunal dated 2 July 2019.
The Respondent notes that the Applicant
is not up to date with his child support payments, but contends that the Other Party should nonetheless be able to organise her affairs based on the findings that the objection decision was final when the Applicant did not seek review of that decision within 90 days.[24]
[24] Respondent’s SFIC at [36].
The Tribunal is somewhat more sympathetic to the position of the Other Party and, as was made clear in Brisbane South, the existence of statutory time limits has, as one of its purposes, to provide certainty in outcomes for all affected parties.
From her evidence to the Tribunal at its hearing, the couple have been separated since 2006 and since 2007 the Applicant has initiated a number of proceedings such that this matter is not finalised, 13 years later. The Other Party’s experience in terms of the Applicant’s non-payment (other than some $900) of determined obligations over that period does not give support to the Respondent’s claim that she should be able to organise her affairs on the basis of the finality of the AAT1 decision. That is not her lived experience.
There are no other parties who might be prejudiced by a decision one way or the other in relation to an extension of time.
5. Merits of the substantial application
In its most narrow sense, the decision under review, against which the test of some prospect of success should be measured, is the decision of the AAT1 not to grant an extension of time.
That involves a degree of circularity. Were this Tribunal to find that the extension of time should be granted, then the decision of the AAT1 would be effectively rendered null and void. It would be a waste of time to remit the matter for reconsideration given any finding in favour or an extension of time and in the ordinary course of events, were that course being taken by this Tribunal, its order would be simply that the extension of time be granted.
If the application for an extension of time were granted, a consequence of that would be that, at some stage, the merits of the original application would have to be considered by the tribunal. It is therefore appropriate that the potential for success of such an appeal be considered at this point.
It is not the proper role of the Tribunal to conduct anything akin to a detailed hearing of the merits of the application for review of the original decision.
In Jackamara, the High Court said:
The understanding of counsel for the appellant as to how the Court would examine "the merits" was consistent with the practice of the courts in a number of common law jurisdictions dealing with applications to extend the time for appealing. In R v Secretary of State for the Home Department; Ex parte Mehta for example, Lord Denning MR said:
"We often like to know the outline of the case. If it appears to be a case which is strong on the merits and which ought to be heard, in fairness to the parties, we may think it is proper that the case should be allowed to proceed, and we extend the time accordingly. If it appears to be a flimsy case and weak on the merits, we may not extend the time. We never go into much detail on the merits, but we do like to know something about the case before deciding whether or not to extend the time." [25]
[25] Jackamarra v Krakouer [1998] HCA 27; 195 CLR 516 Per Brennan CJ and McHugh J [also Kirby J at 66].
Put another way:
Insofar as the merits of the proposed appeal are concerned, the court considers what has been described as “the outline of the case” without “going into much detail on the merits”[26]
[26]BHC16 V Minister for Immigration and Border Protection [2019] FCA 1326 [3].
What is equally clear is that the Tribunal should not allow unmeritorious claims to proceed:
(3)The last relevant principle set out in Hunter Valley Developments was that the merits of the substantive appeal should to be taken into account. Her Honour followed the view expressed by Mortimer J in MZABP v Minister for Immigration & Border Protection [2015] FCA 1391; 242 FCR 585 at [62], upheld by the Full Court in MZABP v Minister for Immigration & Border Protection [2016] FCAFC 110; 152 ALD 478, to the effect that it will seldom be in the interests of justice to grant an extension of time where an appeal would have little prospect of success, given the additional resource demands that it would impose upon the parties and the Court, and the inevitable impact it would have on other users of the Court.[27]
One of the principal considerations to be addressed in deciding whether it is fair and equitable in all the circumstances to extend time is whether the merits of the proposed appeal are such that if an extension of time is granted there is some prospect of success in the appeal. If a consideration of the merits indicates that there is no question to be agitated on the appeal, and there is no prospect of success, it would be futile to grant an extension of time and most unjust to the respondent to subject the respondent to the costs of defending a pointless appeal. Two questions therefore arise on the papers before the Court in this case: (1) whether an acceptable explanation for the delay has been proffered; and (2) whether, on the merits, there is any prospect of the appeal succeeding.[28]
[27] Jamal v Secretary, Department of Social Services [2018] FCA 513 at [6].
[28] Kuljic v Secretary, Department of Social Security (1994) 33 ALD 121 at [6] per von Dussa J.
It is also important for the Tribunal to make sure that:
(1)the Tribunal should be “...guided by what the justice of the case requires”[29]; and
(2)in determining the question of an extension of time, the Tribunal should weigh together all relevant factors.[30]
[29] Brown v Federal Commissioner of Taxation [1999] FCA 563 at [59].
[30]Zizza v Federal Commissioner of Taxation[1999] FCA 848.
The foundational decision in relation to the Applicant’s child support obligations were determined by the AAT1 on 24 October 2016.[31] The AAT1 in that instance was determining the Applicant’s appeal against a departmental decision of 2 November 2015. The 24 October 2016 decision varied the original departmental decision and settled new rates of child support payments for the Applicant.
[31] T Documents pages 63-73.
On 27 June 2017, the Applicant applied for a change to the administrative assessment determined by the AAT1 on the basis of his income, property, financial resources and earning capacity.[32]
[32] Ibid pages 75 to 88
On 7 August 2017, the Department made the decision to refuse to change the assessment as a ground to do so was not established.[33] The Department was not satisfied that there had been a material change in the Applicant’s income, property and financial resources since the AAT1’s decision of 24 October 2016.
[33] Ibid pages 137 to 141.
On 1 March 2018, the Applicant objected to the decision, and on 3 August 2018, the Department disallowed the objection on the basis that a ground was not established.[34]
[34] Ibid pages 37 to 46.
A person paying child support may seek to have an original determination of that level of support varied – or “departed from” – under section 98B of the Child Support (Assessment) Act 1989 (Cth). Before making such a determination the Registrar must be satisfied, as per s. 98C(1)(b)(ii) that it would be:
(A) just and equitable as regards the child, the liable parent, and the carer entitled to child support; and
(B) otherwise proper;
to make a particular determination under this Part.
Should it be found that it is so, then assessment proceeds under section 117(2). This is a lengthy and detailed section, the relevant provisions of which are:
Grounds for departure order
(2) For the purposes of subparagraph (1)(b)(i), the grounds for departure are as follows:
…..
(c) that, in the special circumstances of the case, application in relation to the child of the provisions of this Act relating to administrative assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the child:
(i) because of the income, earning capacity, property and financial resources of the child; or
(ia) because of the income, property and financial resources of either parent; or
(ib) because of the earning capacity of either parent; or
(ii) because of any payments, and any transfer or settlement of property, made or to be made (whether under this Act, the Family Law Act 1975 or otherwise) by the liable parent to the child, to the carer entitled to child support or to any other person for the benefit of the child.
The Respondent provides the following commentary on the Applicant’s claims:[35]
[35] Respondent’s SFIC.
(31)The Registrar understands the Applicant to rely upon the ground outlined at paragraph 117(2)(c) of the Assessment Act, and commonly referred to as ‘Reason 8A’. Specifically, the Applicant contends that the administrative assessment does not correctly reflect his income, property and/or financial resources such that it is unjust and inequitable. The Registrar understands the Applicant to make the following contentions, amongst others:
·his circumstances have changed since the AAT1’s decision of 24 October 2016;
·the income he receives from his business, MODM Limited, has declined as a direct result of departure prohibition orders applied by the Department;
·he has no income and is reliant on support from his wife for most of his living costs; and
·his business is “almost defunct”.
(32)The Registrar agrees with the findings of the objection and AAT1 decisions, and contends that the abovementioned circumstances are not materially different than that described by the Applicant to the AAT1 in 2016 (T11/63-73). Whilst the Applicant’s business may not have an income, the financial statements show it to have made significant losses since at least 2013, with his wife making loans to the company and paying for his costs of living (T2/14). There is no evidence that the reasons behind the business’ financial loss relate to the actions of the Department, nor is there sufficient evidence to draw firm conclusions in relation to the Applicant’s available income and financial resources.
(33)This Tribunal has held that parents involved in child support proceedings are under a duty to make full and frank disclosure of all their financial circumstances. In the absence of full and frank disclosure, the decision maker should be reasonably robust in assessing the non-disclosing parent's financial circumstances adversely to that parent and in favour of the other parent: see for example Tadela and Child Support Registrar (Child support second review) [2017] AATA957
(34)Based on the evidence available, the Registrar contends that both the Applicant’s application for an extension of time to the AAT1, and his substantive application to change his administrative assessment, have little merit.
The claims advanced by the Applicant are, to all intents and purposes, those advanced before the AAT1 in its decision of 24 October 2016. This Tribunal is not called upon to review that decision and hence accepts that he AAT1 gave full and proper consideration to all the claims advanced by the Applicant.
In making submissions to this Tribunal, the Applicant was not required to address matters related directly to the merits of his underlying application for review of the AAT1 decision of 24 October 2016. However, this Tribunal accepts the bona fides of the Respondent in stating that the objections raised by the Applicant in these present proceedings are “not materially different” from those before the AAT1.
If that is the case then this Tribunal would have to agree that any prospects of success at the substantive merits-based hearing would be limited.
The Tribunal does not, however, regard this as the most determinative factor in coming to its ultimate decision. That factor is the acceptability or otherwise of the reason for the late lodgement of the application for review.
CONSIDERATION
The Tribunal notes the emphasis given by von Dussa J in Kuljic (see above), when considering extension of time applications, to the issues of acceptable reasons for delay and substantial merits of the application.
In this matter the Tribunal finds that the Applicant’s reason for the lateness of his application was not an acceptable one. The clear provisions of the ET Act deem that the Applicant was in a position to act after notification on 6 August 2018. He failed to do so within the 90 days provided.
He had an obligation to keep himself informed of matters related to his child support obligations which were transmitted to him via the MyGov portal and he chose not to do so. He cannot claim that this neglect on his part constitutes sufficient grounds for securing a favourable decision on an extension of time application.
If this is the case then the merits of his substantial case against the reviewable decision (the refusal of the extension of time by the AAT1) fall away. They have no substance.
Even were the Tribunal to stretch back to encompass some consideration of the originating application related to the 24 October 2016 decision of the AAT1, it would accept the submission of the Respondent that, in advancing no evidence materially different from that carefully considered by the AAT1, the prospects of success of that application on review would be limited and essentially insubstantial.
The Tribunal also gives some weight to the position of the Other Party who, after some 13 years, has legitimate expectations of finality in this matter and whose interests are more significant than the Respondent apparently accepts.
DECISION
The decision under review is affirmed.
I certify that the preceding 86 (eighty-six) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member,
...............................[sgd].........................................
Associate
Dated: 30 March 2020
Date(s) of hearing: 18 March 2020 Applicant: By telephone Solicitors for the Respondent: Claire Campbell, Services Australia Other Party: By telephone
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