Sagal and Child Support Registrar and Anor (SSAT Appeal)
[2013] FCCA 51
•18 April 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SAGAL & CHILD SUPPORT REGISTRAR & ANOR (SSAT APPEAL) | [2013] FCCA 51 |
| Catchwords: CHILD SUPPORT – SSAT appeal – appeal from decision of Social Security Appeals Tribunal (SSAT) – whether new evidence should be admitted – whether any evidence to support a finding of fact – whether SSAT relied upon irrelevant consideration – whether SSAT failed to take into account a relevant consideration – whether denial of procedural fairness. |
| Legislation: Child Support (Registration and Collection) Act 1988 (Cth), ss.103K, 103N, 110B, 110G, 110G (1)(b). |
| Cases cited: Weir & Weir (1993) FLC 92-338 |
| Applicant: | MR SAGAL |
| First Respondent: | CHILD SUPPORT REGISTRAR |
| Second Respondent: | MS ACKER |
| File Number: | HBC 922 of 2011 |
| Judgment of: | Judge Baker |
| Hearing date: | 21 February 2013 |
| Date of Last Submission: | 21 February 2013 |
| Delivered at: | Hobart |
| Delivered on: | 18 April 2013 |
REPRESENTATION
| Counsel for the Applicant: | In Person |
| Counsel for the first Respondent: | Mr Sparkes |
| Solicitors for the first Respondent: | Australian Government Solicitor |
| Counsel for the second Respondent: | In Person |
ORDERS
The Notice of Appeal (Child Support) filed 29 January 2013 be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Sagal & Child Support Registrar & Anor (SSAT Appeal) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT HOBART |
HBC 922 of 2011
| MR SAGAL |
Applicant
And
| CHILD SUPPORT REGISTRAR |
First Respondent
| MS ACKER |
Second Respondent
REASONS FOR JUDGMENT
This is an appeal by Mr Sagal (“the appellant”) from a decision of the Social Security Appeals Tribunal (“the Tribunal or the SSAT”). The first and second respondents are the Child Support Registrar (“the Registrar”) and Ms Acker (“the second respondent”).
On 5 September 2012, the Tribunal set aside a decision of the objections officer of the Child Support Agency. It substituted its own decision (“the Decision”) that for the period 4 June 2010 to
5 September 2013 there be a departure determination such that the costs of the children are set at the maximum rate and the appellant’s child support percentage is set at 76%, pursuant to s.98 S(l)(j) and s.98 S(l)(f) of the Child Support (Assessment) Act 1989 (“the Assessment Act”).
In the Notice of Appeal (Child Support) filed 29 January 2013, the appellant sought that the Decision be set aside.
The appellant and the second respondent were self-represented. The second respondent did not make any submissions. The Registrar made submissions and was represented by Counsel.
Background
I have taken the following history of child support issues, and the background of the parties from the Decision.
The appellant and the second respondent are the parents of [X] born [in] 2006 and [Y] born [in] 2008. The first respondent has primary care of the children and the appellant has regular care of them.
A child support case was registered from 21 July 2006. The appellant was assessed as liable to pay child support to the second respondent. On 15 July 2008 a Registrar Initiated Change of Assessment was made. On 28 July 2008, the appellant’s adjusted taxable income was set at $307,837.00 for the period to 2 June 2008 to 1 June 2009. It was set at $323,228.00 for the period 2 June 2009 to 3 June 2010, with a child support liability of $21,246.00.
On 28 October 2008, the appellant objected to that decision. His objection was disallowed. On 15 March 2010, an administrative assessment was made for the period 4 June 2010 to 20 July 2011 that the appellant pay a fixed annual rate of $2,386.00, based on a provisional taxable income of nil for the appellant and $14,664.00 for the second respondent.
On 25 May 2010, the second respondent asked for a departure determination on the grounds that the assessment of child support was unjust and inequitable due to the income and earning capacity of the appellant.
On 17 June 2010, the appellant made a cross-application. He asserted that the assessment was unjust and inequitable due to his reduced capacity to support the children because of his responsibility to support another child.
On 9 July 2010, it was decided that due to the income and earning capacity of the appellant, his child support liability for the period 4 June 2010 to 31 December 2012 be set at $15,934.00 per annum. The appellant lodged an objection to that decision. On 8 October 2010 the objection was disallowed.
On 23 January 2012, the appellant made an oral application to the Tribunal for a review of the objection officer’s decision. The appellant was granted an extension of time to lodge the application.
The Tribunal held a pre-hearing conference on 16 May 2012. A hearing was held on 27 July 2012. The appellant and the second respondent gave oral evidence at the hearing. During the hearing, they informed the Tribunal that they had reached agreement and wanted to seek further advice. The hearing was adjourned until 13 August 2012 to enable them to confer and to allow the appellant to provide further documentation, if the matter was to be reconvened.
On 10 August 2012, the appellant provided the Tribunal with further documentation and a letter dated 15 August 2012, which indicated that the parties were willing to compromise the assessment. The matter was deferred to enable a formal agreement to be signed. The letter and documents, which were sent by the appellant to the Tribunal, were sent to the second respondent.
On 17 August 2012, the second respondent wrote to the Tribunal to inform it that the parties had not reached agreement. This letter was sent to the appellant.
The matter was adjourned to 4 September 2012 to enable the parties to decide if they wish to proceed. On 5 September 2012, the Tribunal reconvened to consider the additional evidence and determine the application.
The Decision
The Tribunal set out the legislative framework relevant to the Decision in the Assessment Act and the Child Support (Registration and Collection) Act 1988 (“Registration and Collection Act”). It set out s.98C of the Assessment Act. It identified the central issues for the Tribunal to determine as:
·“Whether a grounds for departure referred to in subsection 117 (2) of the Act exists; and
·Whether it would be:
oJust and equitable as regards the child, the liable parent, and the carer entitled to the child support; and
oOtherwise proper;
To make a particular determination to depart from the administrative assessment of child support”[1].
[1] Paragraph 24 SSAT Decision Sagal v Acker (September 2012).
The Tribunal considered in detail the appellant’s income, property and financial resources and analysed his financial position. The Tribunal was critical of the appellant’s lack of full and frank disclosure. After several pages of discussion about this, the Tribunal concluded:
“The tribunal was not satisfied that Mr Sagal had made full and frank disclosure of his financial position, nor did he provide information in a way that assisted the tribunal in determining his true financial position. The tribunal also had reason to doubt
Mr Sagal’s credibility given the lack of full disclosure of investments, the disparity with the property valuations and the false information provided to ANZ when applying for credit.”[2]
[2] Paragraph 69 SSAT Decision Sagal v Acker (September 2012).
The Tribunal found that there was a ground to depart from the administrative assessment of child support provided for in s.117(2)(c)(ia) of the Assessment Act on the basis that the administrative assessment would result in an unjust and inequitable level of financial support because of the financial circumstances of the appellant. It found that it would be just and equitable as regards the appellant, second respondent and the children and otherwise proper to make the following determination.
The Tribunal decided that because of the appellant's significant financial resources, it would be appropriate to base his child support liability on the maximum amount payable. The Tribunal set the costs of two children under the age of 13 years at $29,346.00 and the child support percentage at 76%. This resulted in an annual child support liability of approximately $21,200.00 to $23,400.00, depending on the year of assessment. The Tribunal commenced the departure determination from 4 June 2010 and ended it on 5 September 2013.
Relevant Law
Section 110B of the Registration and Collection Act provides that a party may only appeal from a decision of the SSAT on a question of law.
Counsel for the Registrar relied upon LDME v JMA (SSAT Appeal)[3] in which Halligan FM (as he then was) said:
“The basis and focus of a section 110B appeal is a question of law. The appeal is not one in which findings of fact per se can be called into question (Comcare v Etheridge [2006] FCAFC 27 at [14] per Branson J, with whom Spender and Nicholson JJ agreed). The Grounds of Appeal called for in the Notice of Appeal in this Court assume the provisions of s 110B. Thus, in my view the Grounds of Appeal to be set out in the Notice of Appeal should ideally be expressed in a way that enables the respondent and the Court to identify the question or questions of law sought to be raised by the appellant and the reasons why a finding for the appellant on that question or those questions should result in the orders sought in the Notice of Appeal being made.”[4]
[3] [2007] FMCAfam 712
[4] Ibid at 29
Counsel for the Registrar also relied upon Comcare v Moon,[5] in which the Federal Court of Australia considered the role of courts undertaking administrative review of tribunals such as the SSAT, and the need for caution when assessing whether or not the tribunal has made an erroneous finding of fact capable of being an error of law. Mansfield J held:
“…Care must be taken not to convert questions of fact into questions of law. The Tribunal, moreover, does not commit an error of law merely because it finds facts wrongly or upon a doubtful basis, or because it adopts unsound reasoning: Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 257; Willcocks v Comcare [2001] FCA 1315 at [6]. If there is any evidence rationally and legally capable of supporting a finding of fact, then the finding of fact does not involve an error of law. That is so even if there is a significant body of evidence pointing to a contrary finding of fact. And the decision as to what evidence is to be accepted is a matter for the administrative decision maker and not for the Court. It is not the function of the Court on an application such as the present to review the Tribunal's findings of fact and to substitute its view of the facts for those of the Tribunal.[6]”
[5] [2003] FCA 569
[6] Ibid at 33
Consistent with these and other decisions of this Court, such as Podmore & Pillai (SSAT Appeal),[7] and Tasman & Tisdall[8] the approach to be taken in an appeal pursuant to s.110B of the Registration and Collection Act is not a rehearing on the merits, in which findings of facts made by the SSAT are reviewed and the court’s view of the facts substituted.
[7] [2011] FMCAfam 952
[8] [2008] FMCAfam 126
Consideration
On 22 October 2012, the appellant filed an Application in a Case seeking an extension of time to file a Notice of Appeal. This was several weeks outside the period required by Rule 25A.06(2) of the Federal Circuit Court Rules 2001. There was no objection by the respondents to the extension of time. As it was not asserted that there was prejudice to the respondents and the delay in filing was minimal, the time was extended.
The appellant relied upon the Notice of Appeal and the attached affidavit and annexures.
The Registrar relied on an Outline of Argument filed 8 February 2012.
The Decision and documents provided to the Tribunal were before this Court.
Further Evidence- should it be received by the Court?
Section.110G of the Registration and Collection Act provides that the court can make findings of fact if they are not inconsistent with the findings of fact made by the SSAT (other than findings made by the SSAT as the result of an error of law), and if it is convenient for the court to make such findings of fact, having regard to the matters set out in s.110G (1) (b). For the purpose of making such findings of fact the court may have regard to the evidence given in the proceedings before the SSAT, and receive further evidence. The power of the court to receive further evidence is dependent on the court finding an error of law in the decision of the SSAT.
Counsel for the Registrar objected to Annexure B of the affidavit annexed to the Notice of Appeal because it was new evidence. Annexure B contained firstly, a statement by the appellant that the only income he will have in the future is from the sale of [omitted], which will not be more than $35,000.00. Secondly, it contained an email dated 27 August 2012 from the National Australia Bank (“the NAB”) to the appellant, which stated that the NAB expected a shortfall of approximately $2,700,000.00 from the sale proceeds realised by the receivers.
The Tribunal found that the appellant was not currently deriving an income from his rental properties, property development activities, and [omitted] businesses. It was not asserted that an error of law was made about that.
The appellant sought to have the email from the NAB received into evidence because the Tribunal, when considering the hardship that would be caused to the appellant under s.117(4)(g) of the Act, found that he should have “excess funds of over $1.5 million when NAB have sold his properties.”
Counsel for the Registrar submitted that the appellant was attempting to have the court review the Decision on the merits by seeking to introduce new evidence. Counsel relied on Chamberlain v Slade (SSAT Appeal[9]) in which Brown FM (as he then was) said:
[9] Chamberlain & Slade (SSAT Appeal) [2012] FMCAfam 658
The power of this court, in an appeal from the SSAT, to make finding of facts is limited by the provisions of section 110G of the Collection Act. The court may make a finding only if the following two provisos are satisfied:
Such a finding of fact is not inconsistent with findings of fact made by the SSAT – other than findings made by the SSAT as a result of an error of law.
It is convenient for the court to make such findings of fact.
Pursuant to section 110G(2), for the purpose of making such findings of fact, the court may either have regard to the evidence given in proceedings before the SSAT itself or receive further evidence. However, it is clear that the power to receive further evidence is dependant upon the court discerning an error of law in the decision of the SSAT, which is subject to appeal. Essentially, this court, in its Appellant jurisdiction from the SSAT, must be careful not to allow evidence to be adduced in the expectation advanced by any Appellant that an error of law will thus be demonstrated.[11]
[11] Chamberlain & Slade (SSAT Appeal) [2012] FMCAfam 658 at 23
It was not asserted that an error of law was made about the appellant’s lack of income from his various business activities. As I indicate further in these Reasons, I consider that the Tribunal did not make an error of law when it found that the appellant “should have excess funds of over $1.5 million when NAB have sold his properties.”
I agree with the submission of Counsel for the Registrar that the appellant, by seeking to have the new evidence received, is asking this Court to review the Decision on the merits.
I therefore consider that the new evidence should not be received.
The Grounds of Appeal
The appellant was self-represented and drafted the grounds of appeal.
I have regard to LDME v JMA (SSAT Appeal)[12] and shall attempt to ascertain the real substance of his appeal. I consider that the substance of the appeal was that the Tribunal:
·Relied upon irrelevant information;
·Failed to consider relevant information by disregarding that most of the appellant’s property is in receivership, which means that he has no control over his assets;
·Found that there should be surplus funds available from “the administration,” when there was no evidence to support that finding; and
·Failed to afford the appellant procedural fairness.
[12] [2007] FMCAfam 712
The appellant did not number his grounds of appeal. For ease of reading, I will discuss them in the order set out in his Notice of Appeal (Child Support).
The appellant did not press his assertion that the grounds of appeal were made pursuant to the Administrative Decisions (Judicial Review) Act1977.
Ground 1
Ground 1 reads:
The ssat used its decision making powers in an improper way, where the tribunal has used documentation prior to the assessment period being reviewed, that is totally irrelevant and not reflective of the current circumstances. ie benneto finance
The appellant asserted that the Tribunal took into account irrelevant documentation of a loan application made by him to [B] Finance Corporation. The appellant asserted that because this application was made in 2009, which was in a period prior to the assessment period being considered, it was irrelevant and not reflective of his current financial circumstances.
In its determination, the Tribunal was required to consider the income, property and financial resources of the appellant. The appellant asserted that his circumstances had changed a lot since 2010 and he could no longer make the child support payments which he was making prior to 2010.
The Tribunal was not able to ascertain the appellant’s financial position from his taxation returns. The appellant was directed to provide a number of documents to enable the Tribunal to gain a clear picture of his income, property and financial resources
The Tribunal said that it was unable to undertake a thorough analysis of the appellant’s financial position, as there were too many gaps in information provided. He failed to provide a properly reconciled account of his financial position. It also found that during the course of hearing, the appellant made a number of omissions from the information provided. In particular;
· The statement of assets and liabilities made no mention of a coin collection which Mr Sagal sold during 2011 for over $127,000.00.
· The statement of assets and liabilities made no mention of three agriculture investments that was valued at $1.5million in July 2009.
The Tribunal queried the appellant about the omissions, but did not receive satisfactory answers or evidence.
The Tribunal set out in detail the analysis which it undertook of the appellant’s financial situation. As I have said, the Tribunal was dissatisfied about the appellant’s lack of full and frank disclosure of his financial position and it had reason to doubt his credibility.
The principles of the duty of parties to make full and frank disclosure apply in the proceedings before the SSAT. In Gilmour and Gilmour[13] the Full Court of the Family Court made that clear when it held that there is a duty to make full disclosure under child support legislation in the same way as such a duty applies in proceedings under the Family Law Act 1975. The appellant therefore has a duty to make full and frank disclosure. In decisions such as Humphries and Berry[14] and Agrippa and Horton[15] this Court has agreed with the application of these principles.
[13] (1995) FLC 92-591
[14] Op cit
[15] Op cit
The Tribunal considered a loan application in respect of the loan obtained by the appellant and his father from [B] Finance Corporation in 2009. The Tribunal said that the original loan was for $53,289.00 and by 18 August 2011 the loan had reduced to $19,040.00.
The Tribunal said that the loan application stated the loan was for $96,000.00 to purchase shares. The Tribunal said that it did not know if the sum of $53,289.00 was used to purchase shares and if so which entity owned them. The Tribunal referred to the loan application to compare the appellant's financial position in 2009 to his financial position in April 2012. The Tribunal noted that “[omitted]” engaged by “[omitted]” valued the appellant’s share at “$5.333 million” and his “own assessment of his net worth at 30 April 2012 was a deficit in assets of $1.653 million.”
The appellant was asked to provide an explanation about why his financial position had changed over that period and to give details of relevant transactions. The Tribunal found that the explanation which the appellant gave was inadequate.
The Tribunal considered the loan application in its attempt to ascertain the appellant's current financial position. The Tribunal was entitled to consider it to ascertain the amount and purpose for the loan, and how the appellant had used the loan funds obtained in 2009. It was entitled to consider what information he had included on the application. It was entitled to consider the loan application as part of its enquiry about his current financial position.
I consider that the loan application was therefore relevant to the Tribunal’s consideration of the appellant’s financial circumstances.
This ground is not made out.
Grounds 2, 3, 4 and 5
These grounds are related and I will discuss them together.
Ground two reads, “they have failed to consider relevant information in basically disregarding the fact that I am in administration and hence have no control over my properties and company.”
Ground three reads, “they have also made a decision according to policy without taking into account the circumstances of the case, ie i (sic) am in administration and cannot sell assets that are in administration in order to pay child support”
Ground four reads, “in addition there was no evidence to support their decision they based their decision on the finding that they believed there should be surplus funds available from the administration, which is a finding that is completely wrong, the affidavit of Ms H was misunderstood by the tribunal”
Ground five reads, “Also the tribunal made a mistake about the law that applied to the facts of the case in that i (sic) am in administration and administration law applies here, i (sic) don’t believe that child support can override administration law, but i (sic) am not a lawyer so i (sic) am unsure on this point.”
The Tribunal found that on 16 December 2011, the NAB appointed a receiver for the property and assets of [Sagal] Pty Ltd (“the company”), and the real property owned by the appellant and his father, subject to the mortgage to the NAB.
The Tribunal referred to the affidavit of Ms H sworn on 26 March 2012, which was provided by the appellant. Ms H is a chartered accountant employed by [omitted]. She was authorised to make the affidavit on behalf of the receivers appointed by the NAB. The Tribunal noted that “the purpose of the affidavit appears to be about Mr Sagal’s request that three of the secured properties were not sold at public auction by the receivers as there was sufficient equity in the remaining properties to cover NAB’s liability.”
The Tribunal said that, “after reviewing independent valuations Ms H stated the properties (less the above four) were worth $4.7 million to $5.9 million.”
Ms H deposed that the appellant’s and his father’s Valuation Schedule showed the value of the security properties at $8,456,000.00. In the schedule a column containing adjustments to values had not been reproduced. Ms H made observations about the true copy of the Valuation Schedule. Amongst other things, she said that it included a property having a value of $150,000.00, not subject to receivership and already sold; the debt to the NAB was incorrect; and it did not take account of the costs of realising the properties. She said that, excluding from the Valuation Schedule the three properties which the applicants did not want sold and the property not subject to the receivership and sold, the market value of the properties in the Valuation Schedule was $5,881,000.00.
Ms H said that she believed from opinions which she sought, that the values of the properties noted in the Valuation Schedule were not reflective of their current values. She said that all properties would need to be sold to satisfy the debt to the NAB, including the three properties which the applicants wanted excluded from sale. She was informed by a valuer that “the total current market value of the properties is in a range between $4, 700,000 and $5,900,000.”
I consider that, rather than excluding properties, Ms H deposed that she was informed that the total current market value of all the properties were in that range. I consider that this error of interpretation by the Tribunal was not of such magnitude to render its findings about the value of the property holdings “perverse or unreasonable”[16] so as to amount to an error of law.
[16] Op cit at 44
There was evidence before the Tribunal to support its finding about the properties totalling a value of $8,306,000.00. The Tribunal accepted the values which the appellant gave to the NAB amounting to $8,456,000.00, less the value of the property not subject to mortgage of $150,000.00.
The Tribunal compared the listing of properties and their market valuations provided by the appellant as part of the legal proceedings against the NAB, with the values provided by him to the Tribunal. It found significant discrepancies.
The Tribunal said that the appellant’s solicitor provided the market and book value of the properties to the NAB in February 2012. In July 2012, the appellant provided to the Tribunal the government valuation. The Tribunal found that this “casts doubt on the veracity of Mr Sagal evidence provided to this tribunal.”
The appellant provided to the Tribunal the list of government values of a total of $776,000.00 for three properties, not subject to the NAB mortgage, or owned by the company, or subject to receivership.
The Tribunal found that the appellant and his father have property worth $776,000.00 and property being managed by the receiver worth $8,306,000.000, a total value of $9,082,000.00. The liabilities listed by the appellant totalled $7,414,934.00, leaving net assets of $1,667,066.00. The Tribunal found that at least half of the net property was attributable to the appellant. Given his undisclosed agricultural investments, an increase in property value when strata titled, and business assets, the Tribunal conservatively estimated his net worth at $1,500,000.00.
The Tribunal found that the appellant also has access to significant financial resources, he is able to fund his current living expenses of $77,376.00 per annum, and he is able to gamble $7,000.00 per annum.
As I have said, it is clear that the Tribunal was dissatisfied with the appellant’s veracity and with his evidence, which he provided in accordance with what suited his interests. I consider that the Tribunal was entitled to make an assessment of the appellant’s financial circumstances adverse to him. As I have also said, the appellant has a duty to make full and frank disclosure of his financial position.
Counsel for the Registrar referred to the comments of Slack FM (as he then was) in Humphries and Berry[17] and to which the Tribunal had referred as follows;
In financial proceedings under the Family Law Act the authorities make it clear that a Court should not be unduly cautious about making findings in favour of the other party if it is not satisfied that a proper disclosure has been made (see Chang & Su (2002) FLC93-117). Such principles, in my consideration, have a similar application to these matters before the SSAT.
[17] (SSAT Appeal) [2008] FMCAfam 409.
In the words of Mansfield J, I consider that there was evidence before the Tribunal which was “rationally and legally capable of supporting its finding”[18] that the appellant should have excess of funds of over $1,500,000.00 when the NAB has sold his properties. The Tribunal found this after accepting the appellant’s value of property managed by the receiver amounting to $8,306,000.00, and a liability of $6,434,000.00 to the NAB.
[18] [2003] FCA 569 at 33.
I am of the view that there was evidence upon which the Tribunal could find that the appellant has property that he could sell, which was not in receivership.[19]
[19] Paragraph 75 SSAT Decision Sagal v Acker (September 2012).
These grounds are not made out.
Ground 6
Ground six reads “…the tribunal made a mistake about the law that applied to the facts of the case in that I am in administration and administration law applies…”
The Tribunal set out the relevant provisions in the Assessment Act and correctly followed the legislative pathway. It identified the issues it was required to determine in accordance with the legislation.[20]
[20] Paragraphs 18-24 SSAT Decision Sagal v Acker (September 2012).
As I have said, the Tribunal was aware and stated that the NAB appointed a receiver for the property and assets of [Sagal] Pty Ltd and the real property owned by the appellant and his father, subject to the mortgage to the NAB.
This ground is not made out.
Ground 7
Ground seven reads “…the decision was made in a way that was not procedurally fair, as I had no opportunity to discuss the further information provided prior to the 4th September.”
Section 103 of the Registration and Collection Act provides for pre-hearing conferences to be held to assist in the conduct and consideration of the review and so that directions can be made to ensure that evidence is brought before the Tribunal at the hearing.
The Tribunal held a pre-hearing conference on 16 May 2012. At the conference, the appellant was told that the Tribunal would be reviewing his accounts and would require explanations of transactions at the hearing.
The Tribunal could not ascertain the appellant’s financial position from his income taxation returns. After the pre-hearing conference the appellant was directed to provide documents “to enable the Tribunal to gain a clear picture of his income and resources.”[21] He was informed why the documents were required and was warned that failing to provide the information could result in an adverse inference being drawn by the Tribunal.
[21] Paragraph 61 SSAT Decision Sagal v Acker (September 2012).
The appellant provided documents on 16 March 2012, 5 July and 27 July 2012. The second respondent provided documents on 23 March 2012.
The hearing was held on 27 July 2012. At the hearing the Tribunal discovered that a number of omissions had been made from the information provided by the appellant. The Tribunal queried him about the omissions. It informed him that his lack of full disclosure about his financial position suggested that his evidence may not be credible.
The Tribunal questioned the appellant about the information he had provided the ANZ Bank when applying for a credit card. He told the Tribunal that he may have “exaggerated” his financial position when applying for the card and put down what income he thought would be needed to secure the credit card. The Tribunal told him that providing the ANZ bank with incorrect information about his financial position in order to secure credit could raise suspicions about the veracity of his evidence to the Tribunal.
The Tribunal adjourned the matter until 13 August 2012 to enable the parties to confer about a possible agreement and to enable the appellant to provide further documents if the matter was to proceed.
The appellant provided further documents on 10 August 2012 (pages 874 to 875) and on 13 August 2012 (pages 876 to 1,193). He gave a letter to the Tribunal on 15 August 2012, which indicated agreement had been reached.
Subsequently the Tribunal sent to the appellant the second respondent’s letter dated 17 August 2012, which indicated that the parties had not reached agreement. The second respondent provided further documents on 21 August 2012[22].
[22] exhibit B, folios 1 – 10.
All documents were exchanged between the parties. The Tribunal identified the folio numbers of the documents received from the appellant and the second respondent in Exhibit A.[23] It said that it considered all the additional documents.
[23] Paragraph 26 SSAT Decision Sagal v Acker (September 2012).
The matter was adjourned to 4 September 2012 to enable the parties to decide if they wished to proceed. On 5 September 2012, the Tribunal reconvened to consider the additional evidence and make a decision.
Counsel for the Registrar submitted that the Tribunal conducted its hearing in accordance with the procedure set out in the Registration and Collection Act and in a similar manner to the procedure referred to in Fawkner & Fawkner (SSAT Appeal)[24], in which Scarlett FM (as he then was) said:
[24] [2012] FMCAfam 755.
67. The Tribunal’s hearing procedure is prescribed by s. 103N of the Child Support (Registration and Collection) Act:
(1) The SSAT, in reviewing a decision under this Part:
(a) is not bound by legal technicalities, legal forms or rules of evidence; and
(b) is to act as speedily as a proper consideration of the review allows; and
(c) in determining what a proper consideration of the review requires, must have regard to the objective laid down by section 88.
(2) The SSAT may inform itself on any matter relevant to a review of a decision in any manner it considers appropriate.
68. The objective of the SSAT in carrying out hearings under Part VIIA of the Act is set out in s.88, which says:
In carrying out its functions under this Act, the SSAT must pursue the objective of providing a mechanism of review that is fair, just, economical and quick.
69. It has not been shown that the Tribunal failed to have regard to the requirements in s.103N(1) of the Act when conducting the hearing.[25]
[25]Ibid
The Tribunal is entitled to inform itself of relevant matters to the review in such a way as it considers appropriate in the circumstances. The Tribunal has the power to require persons to provide information, produce documents or attend and answer questions pursuant to s.103K of the Registration and Collection Act.
Notwithstanding the informal nature of the process, the Tribunal is required to provide procedural fairness to the parties. In Kioa v West,[26] the High Court of Australia considered the procedural fairness that should be provided to parties by an administrative tribunal such as the SSAT.
[26] (1985) 159 CLR 550
The level of that requirement depends on the circumstances of the case, the nature of the inquiry and the subject matter. As noted by Wilson J in Kioa v West:
What is fair will depend… on the particular statutory framework within which the decision is taken. Even within the same statutory framework differing circumstances may call for a different response.[27]
[27] Ibid at 601
Mason J (as he then was) noted that the key aspect of the requirement for procedural fairness is to bring “the critical issue or factor”[28] to the attention of an appellant:
..the importance which the law attaches to the need to bring to a person’s attention the critical issue or factor on which the administrative decision is likely to turn so that he may have an opportunity of dealing with it.[29]
[28] Ibid.
[29] Ibid at 587
The main issue before the Tribunal was the financial circumstances of the appellant. The Tribunal gave him an opportunity to file material prior to and after the hearing and to establish his financial position.
The documents which were provided to the Tribunal after the hearing were exchanged by the parties. They were considered by the Tribunal. It was open to either party to raise any issue before 4 September 2012 and to ask the Tribunal to hear further submissions. In the context of the opportunities the Tribunal had given the appellant to establish his financial position and Tribunal’s findings about the lack of the appellant’s credibility, I do not consider that the Tribunal has been unfair to the appellant.
Having regard to the nature of the tribunal process, I am not persuaded that the appellant has demonstrated that the Tribunal has failed to afford him procedural fairness.
This ground is not made out.
Conclusion
The appellant has failed to establish any grounds for appeal. Accordingly, I dismiss his application.
I certify that the preceding one hundred and two (102) paragraphs are a true copy of the reasons for judgment of Judge Baker
Date: 18 April 2013
[10] See Child Support (Registration and Collection) Act 1989 at section 110G(1)
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