Simon v Social Security Appeals Tribunal - [2011] FMCA 857

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SIMON v SOCIAL SECURITIES APPEALS TRIBUNAL

[2011] FMCA 857

ADMINISTRATIVE LAW – CHILD SUPPORT – Judicial review of decision of Principal Member of SSAT – decision not made by Principal Member – decision of SSAT without legislative authority.

Administrative Decisions (Judicial Review) Act 1977, ss.5, 5(1)(c) – (e), 5(2)(a) – (b), 5(2)(g)
Child Support (Registration and Collection) Act 1988, ss.103K(1)(i), 101(5), 101(5)(c)
Social Security (Administration Act) 1999, clauses 1(a), 20 of Schedule 3

Byrne & Graham (SSAT Appeal) [2010] FMCAfam 1116

Applicant:

JOSEPH SIMON

Respondent:

SOCIAL SECURITIES APPEALS TRIBUNAL

File Number:

BRG 404 of 2010

Judgment of:

Jarrett FM

Hearing date:

16 June 2010

Date of Last Submission:

16 June 2010

Delivered at:

Brisbane

Delivered on:

4 November 2011

REPRESENTATION

Counsel for the Applicant:

Mr Shoebridge

Solicitors for the Applicant:

The applicant representing himself

Solicitors for the Respondent:

Mr Cosgrove

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRG 404 of 2010

JOSEPH SIMON

Applicant

And

SOCIAL SECURITIES APPEALS TRIBUNAL

Respondent

REASONS FOR JUDGMENT

This is an application for an order of review pursuant to s.5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth). The application is said to be made in respect of a decision of a delegate of the Executive Director of the Social Security Appeals Tribunal (now known as the Principal Member of the SSAT) made on 22 July, 2009. The decision was to exclude Mr Simon as a party to an application for review commenced by him and then pending before the SSAT. The consequence of that order was that Mr Simon’s pending review before the SSAT was dismissed without consideration given to its merits because there was no party to prosecute it.
In this application, Mr Simon identifies three general grounds upon which the decision of the delegate of the Principal Member should be set aside. Stated generally those grounds are:
a)the delegate of the Executive Director should not have exercised her powers under her delegation whilst sitting as a member of the SSAT constituted to hear Mr Simon’s review;
b)that insufficient weight was given to Mr Simon’s genuine belief that he had complied with certain directions with which he had been directed to comply; and
c)the public interest in Mr Simon having a hearing on the merits.
If successful in this application, Mr Simon asks for orders that he is reinstated as a party to the SSAT proceedings and his application dismissed by the SSAT be reinstated and heard on its merits.

Other Proceedings

There are two other proceedings before this Court that are connected with this application.
The first in time is proceeding BRC 2819 of 2008. That proceeding was commenced by an enforcement summons issued by the Child Support Registrar to enforce collection of certain alleged arrears of child support. That summons has been adjourned to a date to be fixed.
The second proceeding bears the file number BRC 7198 of 2007 and was commenced by Mr Simon before me by filing a Notice of Appeal…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Simon v Social Security Appeals Tribunal

Details

AGLC: Simon v Social Security Appeals Tribunal [2011] FMCA 857
Case: [2011] FMCA 857
Decision Date: 4 November 2011

CaseChat Overview and Summary

In the Federal Magistrates Court of Australia, Joseph Simon has applied for a review of a decision made by the Social Security Appeals Tribunal (SSAT). The SSAT had dismissed Simon's appeal against a decision made by the Child Support Agency regarding the assessment of his child support income. The SSAT excluded Simon as a party to the appeal, effectively dismissing his case without consideration of its merits. Simon contends that the SSAT lacked the authority to remove him as a party and that his exclusion was an improper exercise of power.

The primary legal issues in this case revolve around the jurisdiction and authority of the SSAT in excluding a party from an appeal and whether the decision was made within the legal framework provided by the Child Support (Registration and Collection) Act 1988 and the Social Security (Administration) Act 1999. Specifically, the court needed to determine if the SSAT had the power to exclude Simon and if the decision was authorised by the relevant enactments.

Federal Magistrate Jarrett concluded that the SSAT did not have the power to exclude Simon as a party to the appeal. The decision to exclude Simon was made by the SSAT as a constituted body, not by a delegate of the Principal Member exercising delegated authority. The court found that the SSAT, as constituted for the specific review, did not have the legislative authority to remove a party to an appeal. The SSAT’s decision to exclude Simon was thus not authorised by the enactments and was an improper exercise of power. Consequently, the decision to exclude Simon from the appeal is liable to be set aside under s.5(1)(c) and s.5(1)(d) of the Administrative Decisions (Judicial Review) Act 1977.

Pending further submissions on the appropriate form of order, the court is expected to reinstate Simon as a party to the SSAT proceedings and order that his application be heard on its merits.

Orders