Saxena and Child Support Registrar and Anor (SSAT Appeal)
[2010] FMCAfam 1416
•21 December 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SAXENA & CHILD SUPPORT REGISTRAR & ANOR (SSAT APPEAL) | [2010] FMCAfam 1416 |
| CHILD SUPPORT – Appeal in respect of decision of the Social Security Appeals Tribunal – whether the Social Security Appeals Tribunal’s decision was affected by an error of law in its decision to refuse the applicant an extension of time to lodge an objection in respect of a departure order. |
| Child Support (Registration and Collection) Act 1988 (Cth);81, 83, 110B,110D Federal Magistrates Court Rules 2001 r.11 |
| Comcare v A’Hearn (1993) 45 FCR 441; Re Mulheron and Australian Telecommunications Corporation (1991) 14 AAT 42; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Hill v Repatriation Commission (2005) 218 ALR 251; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 |
| Applicant: | MR SAXENA |
| First Respondent: | CHILD SUPPORT REGISTRAR |
| Second Respondent: | MS SAXENA |
| File Number: | SYC 6148 of 2010 |
| Judgment of: | Emmett FM |
| Hearing date: | 17 December 2010 |
| Date of Last Submission: | 17 December 2010 |
| Delivered at: | Sydney |
| Delivered on: | 21 December 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr A. Kumar |
| Solicitors for the Applicant: | Harish Prasad & Associates |
| Counsel for the Respondents: |
| Solicitors for the Respondents: | Mrs L. James, Child Support Registrar |
IT IS NOTED that publication of this judgment under the pseudonym Saxena & Child Support Registrar & Anor (SSAT Appeal) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 6148 of 2010
| MR SAXENA |
Applicant
And
| CHILD SUPPORT REGISTRAR |
First Respondent
| MS SAXENA |
Second Respondent
REASONS FOR JUDGMENT
This is an appeal by Mr Saxena pursuant s.110B of the Child Support (Registration and Collection) Act 1988 (Cth) (“the Act”). The appeal is in respect of a decision of the Social Security Appeals Tribunal (“the Tribunal”), dated 21 June 2010, in which the Tribunal affirmed a decision made by an objections officer of the Child Support Agency on 25 May 2010. The decision was to refuse Mr Saxena’s request for an extension of time to lodge an objection to a decision made on 13 May 2008.
On 13 May 2008, a senior case officer of the Child Support Agency made a departure order in respect of an assessment made on 20 April 2007 in relation to child support payments to be paid by Mr Saxena to the second respondent, Ms Saxena.
The senior case officer found that Mr Saxena had changed his employment arrangements without any health or caring justification and that a major purpose in doing so had been to affect the child support assessment. The senior case officer found there was insufficient evidence that Mr Saxena had left his job for medical reasons.
Pursuant to s.81 of the Act, Mr Saxena was required to lodge any objection to the departure order made on 13 May 2008 within 28 days after the notice of the departure decision was served upon him.
On 29 April 2010, Mr Saxena lodged an objection to the departure decision, dated 13 May 2008, as well as an extension of time application pursuant to s.82 of the Act.
On 25 May 2010, pursuant to s.83 of the Act, an objections officer of the Child Support Agency refused the applicant an extension of time to lodge his objection to the departure order made on 13 May 2008.
On 21 June 2010, Mr Saxena lodged an appeal to the Tribunal. I note that the parties before the Tribunal were Mr Saxena and the Child Support Agency Registrar. Accordingly, pursuant to s.110D of the Act, the parties before this Court are Mr Saxena as the applicant and the Registrar of the Child Support Agency as the first respondent.
On 30 November 2010, I directed that the applicant provide a copy of the notice of appeal to Ms Saxena. Ms Saxena appeared by telephone at the hearing on 17 December 2010, and indicated her desire to participate in the proceeding as second respondent. Accordingly, pursuant to rule 11 of the Federal Magistrates Court Rules 2001(Cth) I ordered that Ms Saxena, being an interested party, be joined to the proceeding as the second respondent. Ultimately, Ms Saxena made no submission in the proceeding.
Pursuant to s.110B of the Act, Mr Saxena is entitled to appeal to this Court on a question of law from the decision of the Tribunal dated 21 June 2010.
The grounds of the notice of appeal are expressed as follows:
“1. The Child Support registrar erred in failing to take into account the full circumstances of the Applicant including the financial circumstances, health, earnings and earning capacity.
2. The Tribunal erred in finding the Child Support Registrar had not erred in law.
3. The Tribunal erred in consideration of the extension application.
At the first court date before this Court on 30 November 2010, the applicant was represented by Mr Kumar, of counsel
On that occasion, I asked Mr Kumar what was the error of law by which the Tribunal’s decision was said to be affected. I said that it seemed to me that the grounds of the appeal did no more than make bare assertions. The grounds were unsupported by particulars.
Mr Kumar responded with further general assertions that the Tribunal in the exercise of its discretion had not given sufficient weight to material before the Tribunal and had not considered the consequences for the applicant of the applicant’s liability to pay child support. He was not able to identify the material to which he asserted the Tribunal had failed to give weight. I asked Mr Kumar what were the consequences that he asserted the Tribunal had not considered.
Mr Kumar responded that the Tribunal had not taken into account that the applicant was not working at the time of the departure order, made on 13 May 2008.
I put to Mr Kumar that it appeared to me that there had not been an error of law identified by the applicant in the Tribunal’s decision. I said the matter would be stood over to allow Ms Saxena to be notified of the proceeding and that the alleged error would be revisited on the next occasion.
The matter was adjourned to 17 December 2010 for a further directions hearing. Mr Kumar appeared again for Mr Saxena.
At the commencement of the hearing, I raised with Mr Kumar what was the error of law made by the Tribunal. Mr Kumar then gave the Court a copy of an email, dated 16 December 2010, sent to the respondent’s solicitor, Mrs James. That email purported to provide particulars of the grounds relied upon. Those particulars are as follows;
Ground 1 / Ground 2
The medical condition was critical to Appellant’s financial capacity. The medical evidence was disregarded when the Appellant’s evidence was before the Registrar. The Tribunal should have found that the Registrar disregarded the Appellant’s needs in including medical needs in the assessment application / further basis contained in the objection application.
Ground 3
The Tribunal denied the applicant procedural fairness on critical fact which is decision turned – namely an explanation of the reason for late lodgement of objection to the Registrar’s assessment and further erred in law in considering this as a critical fact whilst Comcare v A’Hearn did not require the applicant to give reason for all delays (describing as lack of action from May 2009 to April 2010).
The Tribunal denied the applicant procedural fairness on critical fact on which it decision turned – namely that it would be unfair to others in like position at [41] when in essence this is a contest between two parties and the Appellant has been affected by injury.
The Tribunal further erred in taking into account irrelevant consideration (namely that the Appellant had a right of administrative remedy which only cured part of the assessment under challenge) denied the applicant procedural fairness on critical facts.
The Tribunal erred in law by disregarding the substantive merit of the application when the applicant had produced medical certificate and this principal basis on which the decision should have turned”
Mr Kumar withdrew any reliance on Grounds 1 and 2 of the notice of appeal. Accordingly, those grounds of appeal are dismissed.
In relation to Ground 3, Mr Kumar raised four complaints which he was prepared to deal with on 17 December 2010. I asked both
Mr Kumar and the solicitor for the first respondent Mrs James, if there was any further evidence either wished to rely upon in the proceeding. Both confirmed that there was not. Ms Saxena declined to make any submission. On that basis, I commenced to hear the matter on a final basis. Neither party objected to that course of action. Mr Saxena’s four complaints as particularised by Mr Kumar are as follows:
i)That the Tribunal erred in finding that the applicant’s explanation for the late lodgement of objection was a critical fact;
ii)That the Tribunal denied the applicant procedural fairness by failing to put to him at the hearing for comment its finding that “given the length of delay the Tribunal did not think it would be fair to others in a like situation to grant an extension of time to Mr Saxena”;
iii)That the Tribunal erred in taking into account an irrelevant consideration being the applicant’s right of administrative remedy in circumstances where that remedy cured only part of the assessment under challenge;
iv)That the Tribunal disregarded the substantive merit of the applicant’s medical condition and explanations.
In relation to (i) above namely that the Tribunal erred in considering the applicants explanation for his late lodgement of objection as a critical fact, Mr Kumar referred the court to Comcare v A’Hearn (1993) 45 FCR 441 (“A’Hearn”) in support of his submission that the applicant was not required to give reasons for his delay.
However, I do not accept that A’Hearn is authority for the proposition as articulated by Mr Kumar. In that case, the Tribunal found that there had been an inexcusable delay on the part of the solicitors. The Full Court of the Federal Court did no more than observe that, “Although it is to be expected that such an explanation will normally be given, as a relevant matter to be considered, there is no rule that such an explanation is an essential pre-condition.”
A fair reading of the Tribunal’s decision record, does not suggest that the Tribunal regarded the applicant’s explanation as an essential precondition in satisfying it that an extension of time should be granted. Mr Kumar did not make any submission to the contrary.
Indeed the Tribunal itself referred to A’Hearn, noting that there was no rule or requirement that there must be an acceptable reason for delay.
In considering the applicant’s reasons for delay, the Tribunal accepted that the initial delay in lodging the objection to obtain medical evidence was reasonable. However the senior case officer found that Mr Saxena did not have sufficient medical evidence to support his claims that his back condition affected his work capacity. The Tribunal noted that Mr Saxena understood that he would need to provide evidence in support of any objection. The Tribunal found that such evidence was available by October 2008, based on a medical report dated, 29 September 2008, from the Mr Saxena’s neurosurgeon.
The Tribunal noted that, thereafter, Mr Saxena said that he had left the matter in the hands of his first solicitor and that he thought an objection was in train. Mr Saxena said that he had not realised that the solicitor had taken no action. The Tribunal accepted Mr Saxena’s explanation “to a point”. However, the Tribunal found that by the new year, 2009, it should have been apparent to Mr Saxena that nothing was happening.
The Tribunal noted, that in any event, Mr Saxena was aware that no objection had been lodged by his solicitor in May 2009 when he spoke to the Child Support Agency and was again told to lodge an objection and an extension of time application.
The Tribunal noted that close to a year had passed before Mr Saxena lodged his objection and application for an extension of time and, only then, after the Child Support Agency had sent Mr Saxena a letter threatening enforcement action concerning the accruing arrears.
The Tribunal concluded that, had the objection been lodged later in 2008 after proper medical advice was obtained, there would have been sufficient reason for the delay. However, the Tribunal found that
Mr Saxena left it for nearly two years to lodge an objection even though he had the medical evidence by October 2008. As stated above, the Tribunal also observed that Mr Saxena had a further opportunity to lodge an objection in May 2009, however, took no step until April 2010.
The Tribunal found that, having regard to the length of time the
Mr Saxena took to lodge his objection and an extension of time application, there were insufficient reasons provided by him for that delay.
I reject Mr Kumar’s submission that those reasons are analogous to the reasons given by the Tribunal in A’Hearn where that tribunal regarded the delay occasioned by the solicitors as unacceptable and visited that finding upon the applicant.
In the case before this Court, the Tribunal accepted the Mr Saxena’s explanation for his initial delay. It was only following the Mr Saxena’s complete disregard of the Child Support Agency’s advice in May 2009 to lodge his objection and an extension of time application until April 2010, that the Tribunal regarded his reasons for that delay as insufficient. Both findings were open to the Tribunal on the evidence and material before it and for the reasons it gave. Those findings are not attenuated by an error of law.
In relation to (ii) above, Mr Kumar asserted that Mr Saxena was denied an opportunity to address the Tribunal on whether it would be unfair to others in a like situation to grant Mr Saxena an extension of time. However, Mr Kumar was unable to identify what it was that the
Mr Saxena wished to have put to the Tribunal in respect of its consideration of whether or not it would be unfair to others in a like situation to grant an extension of time to Mr Saxena.
In any event, it is clear from the exposition of principles to be applied in considering an application for an extension of time by O’Connor J in Re Mulheron and Australian Telecommunications Corporation (1991) 14 AAT 42 (“Re Mulheron”) that fairness in granting an extension of time as between the applicant and other persons in like positions is relevant. Mr Kumar accepted that Re Mulheron sets out the principles to be considered for the application for an extension of time.
Plainly, there is a public interest in ensuring that extensions of time are met. An extension of time is an exception to the general rule (Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541). A fair reading of the Tribunal’s decision record makes clear that it considered whether justice is served by the general rule being overturned. In the course of that consideration, it had regard to the unremarkable proposition that other applicants in a like situation to Mr Saxena would be unlikely to be granted extensions of time for the full range of reasons considered by the Tribunal.
In the circumstances, the Tribunal’s conclusion was open to it upon its evaluation of the evidence and material before it. Accordingly there was no error in the Tribunal’s finding that, given the length of
Mr Saxena’s delay, it was of the view that it would not be fair to others in a like situation to grant an extension of time to Mr Saxena.
In relation to (iii) above I reject Mr Kumar’s submission that the fact that Mr Saxena had an administrative remedy otherwise available to him, namely lodging a fresh application for assessment, was a matter to which the Tribunal improperly had regard. The Tribunal clearly was aware that an assessment made in those circumstances could be backdated for 18 months only.
However, it was open to the Tribunal to find that Mr Saxena could lodge a fresh change of assessment application based on his impending spinal surgery. It was a matter to which the Tribunal was entitled to have regard. The Tribunal’s reasons make clear that it understood the limited consequences that a further unfavourable assessment may have for Mr Saxena.
In the circumstances, there was no error of law on the part of the Tribunal in considering that Mr Saxena had an administrative remedy available to him albeit for a limited time only.
In relation to (iv) above, I reject Mr Kumar’s submission that the Tribunal did not give sufficient consideration to the applicant’s medical conditions.
A fair reading of the Tribunal’s decision makes clear that Tribunal was aware of the seriousness of the applicant’s past medical condition and his impending spinal surgery and the relevance of those matters to the applicant’s application for an extension of time. The weight the Tribunal gave that evidence in considering Mr Saxena’s application for an extension of time is a matter for it as the finder of fact. Otherwise, such a complaint invites merits review which this Court can not undertake (Hill v Repatriation Commission (2005) 218 ALR 251 at [92] - [93] per the Court; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at [40]-[42] per Mason J); Attorney-General (NSW) v Quin (1990) 170 CLR 1 at [36] per Brennan J).
At the conclusion of the hearing, Mr Kumar confirmed with the Court that there was no other evidence upon which he would seek to rely in support of the appeal to this Court and that there were no further submissions, oral or written that he wished to put in support of the appeal.
Conclusion
A fair reading of the Tribunal’s decision makes clear that the Tribunal properly proceeded on the basis that “prima facie proceedings commenced outside the prescribed period will not be entertained. An extension of time will be granted, however, if it is proper to do so”.(see Re Mulheron). The Tribunal also had regard to the other matters referred to in Re Mulheron as appropriate to be considered in an application for an extension of time. They include whether an applicant rested on his or her rights or took action to make the decision maker aware that the decision was being contested; any prejudice to the respondent that would be caused by granting the extension of time; any wider prejudice to the general public in terms of disruption to established practice; and the merits of the substantial application; as well as the fairness of granting an extension of time as between the applicant and other persons in like situations.
The Tribunal’s conclusion that, in the circumstances before it, it was not proper to extend time to the respondent for lodging an objection, was open to it on the evidence and material before it and for the reasons it gave.
Accordingly, there is no error of law in the Tribunal’s decision and the proceeding before this court commenced by way of notice of appeal filed on 28 September 2010 should be dismissed with costs.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Emmett FM
Date: 21 December 2010
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