Simon v Social Security Appeals Tribunal
[2011] FMCA 857
•4 November 2011
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 (Child Support) on 30 November, 2009. In that proceeding, Mr Simon seeks to challenge what is said to be a decision of the SSAT made on
3 December, 2009 to refuse to allow Mr Simon to file a “fresh” appeal, or alternatively, that his appeal against a decision of the Child Support Agency made on 10 February, 2009 be heard in this Court. That proceeding has also been adjourned to a date to be fixed.
The Power To Review
Section 5 of the ADJR Act provides for a person who is aggrieved by a decision to which the Act applies to apply to, inter alia, the Federal Magistrates Court for an Order of Review. Mr Simon relies upon the following grounds set out in s.5(1) of the ADJR Act to support this application:
a)s.5(1)(c) – that the person who purported to make the decision did not have jurisdiction to make the decision;
b)s.5(1)(d) – that the decision was not authorised by the enactment in pursuance of which it was purported to be made; and
c)s.5(1)(e) – that the making of the decision was an improper exercise of the power conferred by the enactment pursuant to which it was purported to be made.
Subsection 5(2) of the ADJR Act sets out a list of factors to be taken into account when considering s.5(1)(e). Mr Simon relies upon the following of those factors:
a)s.5(2)(a) – taking an irrelevant consideration into account in the exercise of a power;
b)s.5(2)(b) – failing to take a relevant consideration into account in the exercise of a power;
c)s.5(2)(g) – an exercise of power that is so unreasonable that no reasonable person could have so exercised the power.
The statutory regime – review of child support decisions
Part VIIA of the Child Support (Registration and Collection) Act 1988 provides for review by the SSAT of decisions of the Child Support Registrar. Division 3 of Part VIIA deals with appeals to a court from decisions of the SSAT and references on questions of law from the SSAT.
The way in which the SSAT comes to be seized of a matter under the Registration and Collection Act and the arrangements for the SSAT to be constituted for the purposes of such a matter were examined by Riethmuller FM in Byrne & Graham (SSAT Appeal) [2010] FMCAfam 1116. In that case, his Honour said:
20. The [Registration and Collection Act] does not define the term “SSAT” other than to point out that it is an abbreviation for the term Social Security Appeals Tribunal. In the Social Security (Administration) Act 1999, a definition is given of the term SSAT in the context of conducting a review, in clause 10(2) of Schedule 3 of the Act:
10 [Constitution of SSAT for each hearing]
(1) Subject to clause 11, the Principal Member may give written directions as to the member who is, or members who are, to constitute the SSAT for the purposes of:
(a) a particular review; or
(b) reviews of a particular kind.
(2) Without limiting subclause (1), the Principal Member may give a direction under that subclause as to the member who is, or members who are, to constitute the SSAT for the purposes of all reviews, or reviews of a particular kind, that are listed for hearing at a particular place during a particular period or during particular periods.
(3) For the purposes of a review, the SSAT is to be constituted by the member or members ascertained in accordance with the directions given under subclause (1). (emphasis added)
21. Importantly, in clause 10(1) of the schedule, it is made clear that the Principal Member may give directions as to the member/s who would constitute the SSAT for the purpose of a particular review:
10 [Constitution of SSAT for each hearing]
(1) Subject to clause 11, the Principal Member may give written directions as to the member who is, or members who are, to constitute the SSAT for the purposes of
(a) a particular review; or
(b) reviews of a particular kind.(emphasis added)
22. It is argued before me that the Executive Director’s decision is not a decision of the SSAT as contemplated by the Child Support (Registration and Collection) Act and therefore, there is no appeal available under the relevant provisions. The only right of review that would remain would then be for the appellant to seek judicial review of the Executive Director’s decision.
23. It seems clear that the SSAT must be constituted by a specific member for the purpose of conducting a review. The appeal provisions relate to decisions of a member nominated for the purpose of conducting their review. In this case, the proceedings had not reached that point, but the Executive Director had exercised various other powers under the Act. Those powers do not appear to be the subject of the appeal provisions or review by the Tribunal.
24. This view is one that has been argued extrajudicially by Halligan FM in a recent paper ('Appeals from SSAT child support decisions', A paper for the Legal Aid NSW Child Support Service seminar series, 27 July 2010) where his Honour said:
[36] The Executive Director may also summarily dismiss an application to the SSAT for review (except one made by the Registrar). One ground on which the Executive Director may summarily dismiss an application is that “the decision is not reviewable under this Part [VIIA]”. This is a decision that must necessarily involve a question of law, going to the jurisdiction of the SSAT. However, as the decision is not a decision of the SSAT, it would seem that there is no right of appeal under s.110B. Nor is any right conferred on a person affected by the decision to seek review in the AAT. (emphasis added)
It is clear that the SSAT constituted by direction from the Principal Member for the purposes of a particular review is conceptually a different entity to the Principal Member, even though the SSAT consists of, amongst others, the Principal Member (clause 1(a) of Schedule 3 of the Social Security (Administration Act) 1999).
The decision which is the subject of challenge in this case is a decision that was purportedly made pursuant to s.101(5) of the Registration and Collection Act. At the date of the decision, that subsection was in the following terms:
(5) The SSAT Executive Director may direct that a party to a review no longer be a party to the review if:
(a) the party consents; or
(b) the SSAT Executive Director is satisfied:
(i) after having communicated with the party; or
(ii) after having made reasonable attempts to communicate with the party and having failed to do so;
that the party does not intend to participate in or proceed with the review; or
(c) the party fails to comply with a direction or order of the SSAT or of the SSAT Executive Director given in relation to the review; or
(d) the party fails to attend the hearing.
The reference to the SSAT Executive Director is now a reference to the Principal Member. It can be appreciated from s.101(5)(c) that the power to direct that a party to a review no longer be a party to the review is vested in the Principal Member. That power can be delegated: (clause 20 of Schedule 3 of the Social Security (Administration Act) 1999).
The power is not vested in “the SSAT” or any particular tribunal constituted for the purposes of a particular review. In that regard, in Byrne & Graham (above), Riethmuller FM compared the position with that which exists under the Administrative Appeals Tribunal Act 1975:
27. A similar issue arises in the Administrative Appeals Tribunal (‘AAT’). Section 44 of the Administrative Appeals Tribunal Act 1975 (‘AAT Act’) provides an applicant with a right to appeal the Tribunal’s decision in the Federal Court of Australia.
44 [Appeals to Federal Court of Australia from decisions of the Tribunal]
Appeal on question of law
(1) A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding. (emphasis added)
…
28. The AAT does not have an Executive Director: It has the President who manages the Tribunal’s administrative affairs (s.24A(1) of the AAT Act). Under s.20B(1) of the AAT Act, the President may give directions as to the persons who are to constitute the Tribunal for the purposes of a particular proceeding.
29. The AAT Act defines the term ‘Tribunal’:
3 [Interpretation]
"Tribunal" :
(a) means the Administrative Appeals Tribunal established by this Act; and
(b) in relation to a proceeding, means the Administrative Appeals Tribunal so established as constituted for the purposes of the proceeding; and
(c) includes a member, or an officer of the Tribunal, exercising powers of the Tribunal. (emphasis added)
30. Section 3(c) of this definition extends the definition of ‘Tribunal’ to officers, whereas no equivalent appears in the Social Security (Administration) Act 1999 nor the Child Support (Registration and Collection) Act.
31. Having looked at the definition of ‘Tribunal’ in s.3 of the AAT Act, Deputy President SA Forgie, in Toohey and Tax Agents' Board [2009] AATA 142 stated at para [16]:
Therefore, when s 44(1) provides that “A party to a proceeding before the Tribunal may appeal ... from any decision of the Tribunal in that proceeding”, the reference to the “Tribunal” is to be read as a reference to the Tribunal as constituted for the purposes of the proceeding i.e. in accordance with (b) of the definition. The same could be true when the word “Tribunal” is used in s 44(5) in so far as it is used to identify the decision in relation to which the Federal Court may make certain orders. Section 44(5) also uses the word on a second occasion when conferring power on the Federal Court to remit the case to be heard and decided again by the Tribunal. That is a use of the word “Tribunal” without reference to a “proceeding” as that term is defined in s 3(1). On its face, it would seem that it should be understood as a general reference to the Administrative Appeals Tribunal established by the AAT Act i.e. in accordance with (a) of the definition. (emphasis added)
32. Whilst this indicates some flexibility in reading the term ‘Tribunal’ it would not support imputing the equivalent of s.3(c) of the ‘Tribunal’ definition in the AAT Act to the SSAT.
33. Section 42A of the AAT Act provides a power to dismiss an application where the applicant has failed to comply with the Tribunal’s direction:
42A [Discontinuance, dismissal, reinstatement etc. of application]
…
Dismissal if applicant fails to proceed or fails to comply with Tribunal's direction
(5) If an applicant for a review of a decision fails within a reasonable time:
(a) to proceed with the application; or
(b) to comply with a direction by the Tribunal in relation to the application;
the Tribunal may dismiss the application without proceeding to review the decision. (emphasis added)
34. The dismissal power in the AAT Act is conferred upon the Tribunal and not an Executive Director or the President, unlike the provision in the Child Support (Registration and Collection) Act. As a result little assistance can be gained by comparing the relevant AAT Act and Social Security (Administration) Act provisions in this regard.
The Facts
Before the SSAT Mr Simon sought review of a decision of the Child Support Agency made on 10 February, 2009. The decision was to the following effect:
a)from 25 March, 2008 to 30 June, 2008 Mr Simon should be assessed on a child support income of $66 000.00 per annum; and
b)from 1 July, 2008 to 31 December, 2009 Mr Simon should be assessed on a child support income of $125,780.00 per annum.
On 29 May, 2009 directions were made for the production of documents for the purposes of Mr Simon’s review. Written confirmation of the directions was given to Mr Simon on 9 June, 2009. The written directions:
a)purport to be made on the day of the letter – 9 June, 2009;
b)were made pursuant to s.103K(1)(i) and (ii) of the Child Support (Registration and Collection) Act 1988;
c)required both parties to produce the documents and other information set out in the directions;
d)were signed “for Executive Director”; and
e)appear on letterhead bearing the words “Social Security Appeals Tribunal”.
Compliance with the directions, so far as Mr Simon was concerned, needed to take place by 23 June, 2009.
On 8 July, 2009 a person with the designation “State Business Manager” wrote to Mr Simon on letterhead designated “Social Security Appeals Tribunal” noting that the requested “material” had not been received. The letter went on:
It is open to the Tribunal to direct that you be removed as a party to this appeal because of your failure to comply with the Tribunal’s Directions. This could mean that your appeal will be dismissed or decided without your further participation. In these circumstances, you have until close of business on Friday, 10 July 2009 to provide written reasons why you should not be removed as a party.
The letter was incorrect and apt to mislead in certain respects. The “Tribunal” has no power to direct that Mr Simon be removed as a party. Nor had the “Tribunal” made any directions with which Mr Simon had to comply.
Despite the request from the State Business Manager, Mr Simon did not provide any written reasons as to why he should not be removed as a party, although his unchallenged evidence is that he asked his Counsel to take matters up with the Tribunal on his behalf and he did so. As a result of conversations with his Counsel Mr Simon believed that his application remained listed for hearing by the SSAT on 22 July, 2009 and that the “disclosure issues” were “at an end”.
On 22 July, 2009 the SSAT constituted by three members commenced hearing the review before it. At that hearing Mr Simon was removed as a party to the SSAT appeal. His child support appeal then before the SSAT was subsequently dismissed.
There is a transcript of the hearing before the Tribunal in evidence before me. Pages 22 – 28 of the transcript demonstrate significant involvement of Tribunal member Foster in questioning Mr Simon and his Counsel in relation to matters of non-disclosure of financial information. At page 24 Mr Foster says:
We really aren’t in a position to proceed today, and that is because we haven’t been given the information that we all want Mr Simon to provide, and there is power for the tribunal to remove the person or the party in those circumstances.
The reasons for the decision to remove Mr Simon as a party to the proceedings before the SSAT are set out in the transcript. Those reasons are as follows:
MS AMMALA: We have considered the matter and we consider that the tribunal isn't in a position to hear the matter today. Mr Simon hasn't produced the information that is required for the matter to be able to proceed. Ms Fox is obviously ready to proceed and we consider that it was Mr Simon's failure to produce the information to the tribunal that left it in a position where the matter couldn't proceed today. The information is essential to the matters in dispute. The tribunal considers that it can't make findings without the information.
The general practice directions, which have been issued by the tribunal, set out the requirements for parties to produce documents and to produce information, and there were directions issued at the pre hearing conference on 9 June 2009 which clearly set out the information that was required to be provided by both the parties. Ms Fox has complied with the directions and Mr Simon hasn't. The tribunal has taken into consideration the fact that the onus of proof is on Mr Simon in these parties, and that without that information Mr Simon's application can't proceed.
The general practice directions provide that the tribunal can only adjourn cases on applications made within 14 days prior to the hearing, if it considers that the reason for the adjournment is compelling. The tribunal has considered the reasons which have been provided by Mr Simon and considers that they are not compelling in the circumstances. The tribunal considers that Mr Simon clearly knew that he was required to provide information and has not done so. As a consequence of that, the tribunal declines to adjourn the application and in those circumstances the tribunal will remove Mr Simon as a party pursuant to the provisions of paragraph C of subsection (101)(v) of the Child Support Registration and Collection Act.
Consequent upon that and upon Ms Tubb's indication to the tribunal that Ms Fox consents to a dismissal of the appeal, the tribunal will dismiss the appeal pursuant to the provisions of paragraph C of subsection (101) of the Registration and Collection Act. Thank you for your appearances today.
(emphasis added)
The person who purported to make the decision did not have jurisdiction to make the decision
In my view, the decision to remove Mr Simon from the appeal before the SSAT on 22 July, 2009 was made by the Tribunal as it was then constituted, not by the presiding member as a delegate of the Principal Member exercising delegate power. I have arrived at that conclusion because:
a)the SSAT had commenced its hearing of Mr Simon’s appeal then before it. The particular SSAT for that review had been appointed and assembled;
b)on a plain reading, the language used by the presiding member when delivering the reasons for excluding Mr Simon as a party mean as much;
c)it is clear from the reasons set out above that it was the appointed members of the Tribunal that considered the various matters expressed in the reasons as having been taken into account. The use of the word “we” could not mean anything else;
d)a reading of the transcript leading up to the purported decision confirms the impressions that the decision was one taken by the “Tribunal” – rather than the Presiding Member alone – Mr Foster’s involvement in the process and his statement that the “tribunal” had power to remove Mr Simon as a party is consistent with the words used by the presiding member and can only be consistent with an understanding that it was for the tribunal to determine if Mr Simon should be removed as a party;
e)The subsequent correspondence to Ms Fox confirms that it was the “Tribunal” that made the decision.
The submissions for the respondent on this application suggest that the reference in the transcript is but a “slip” and notwithstanding that slip it is clear that it was a decision of the presiding member exercising delegated authority.
In my view, however, that is not at all clear. There is no evidence that the transcript is inaccurate. Assuming the accuracy of the transcript, it is clear that the presiding member used the word “tribunal” on several occasions to refer to the decision maker. Moreover, the use of the word “we” confirms that the use of the word “tribunal” was no mere error.
Disposition
The SSAT had no power to exclude Mr Simon as a party to the appeal on 22 July, 2009. Its decision in that regard is liable to be set aside pursuant to s.5(1)(c) and 5(1)(d) of the Administrative Decisions (Judicial Review) Act 1977 and should be so set aside.
I will hear the parties as to the appropriate form of order.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Jarrett FM
Date: 4 November 2011
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