SIMON v SSAT Executive Director
[2010] FMCA 373
•1 June 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SIMON v SSAT EXECUTIVE DIRECTOR | [2010] FMCA 373 |
| ADMINISTRATIVE LAW – Application for Judicial review – removal of party to appeal – objection on the basis application not filed in reasonable time. |
| Administrative Decisions (Judicial Review) Act 1977 Child Support (Registration and Collection) Act 1988 Child Support (Assessment) Act 1989 |
| Lucic v Nolan (1982) 45 ALR 411 @ 416 Hunter Valley Developments Pty Ltd v Cohen (1984) 58 ALR 305 @ 310 and 311 |
| Applicant: | JOSEPH SIMON |
| Respondent: | EXECUTIVE DIRECTOR, SOCIAL SECURITIES APPEALS TRIBUNAL |
| File Number: | BRG 404 of 2010 |
| Judgment of: | Slack FM |
| Hearing date: | 12 May 2010 |
| Date of Last Submission: | 12 May 2010 |
| Delivered at: | Brisbane |
| Delivered on: | 1 June 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Shoebridge (Direct Brief) |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
That the Application to Review the Decision of the Social Security Appeals Tribunal Executive Director be listed for hearing on 16 June 2010 at 9.30am.
That Katalin Fox as an interested person have leave to appear at the hearing.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 404 of 2010
| JOSEPH SIMON |
Applicant
And
| EXECUTIVE DIRECTOR, SOCIAL SECURITY APPEALS TRIBUNAL |
Respondent
REASONS FOR JUDGMENT
The Executive Director (hereafter the “Executive Director”) of the Social Security Appeals Tribunal (hereafter “the SSAT”) objects to the jurisdiction of this Court to determine an application for review under the Administrative Decisions (Judicial Review) Act 1977 (hereafter “the AD(JR) Act”) on the grounds that:
a)
the applicant has not made his application within a reasonable time of the decision made by the SSAT Executive Director on
22 July 2009 to remove him as a party to the proceedings then before the SSAT.
Decision sought to be reviewed
The applicant seeks to review the decision of the Executive Director of the SSAT made on 22 July 2009 to remove the applicant as a party to an appeal to the SSAT, pursuant to s.101(5)(c) of the Child Support (Registration and Collection) Act 1988 (hereafter “the CSRC Act”).
Background to the application
The application was filed on 27 April 2010 (nine months after the decision sought to be reviewed).
The decision was made in the course of an appeal lodged by the applicant against an objection decision made by the Child Support Agency in an application to departure from the administrative assessment for child support.
The application for review was lodged by the applicant on 12 March 2009.
There is no dispute that that application was not heard on the merits. In the course of the application the SSAT made a number of directions requiring the applicant to disclose relevant financial documents.
When the matter came before the SSAT on 22 July 2009 a decision was made to remove the applicant as a party to the appeal due largely to his failure to comply with the direction to provide relevant disclosure of documents.
After he was removed as a party, the SSAT dismissed the appeal.
The applicant took no action until he wrote a letter dated 30 October 2009 (three months after the decision under review) in which the applicant sought to lodge a fresh appeal or have the earlier appeal reinstated.
The request was refused and it would appear that it was from that decision that the applicant appealed to this Court.
The appeal against that decision was brought pursuant to s.110B of the CSRC Act.
The hearing for that appeal was mentioned in this Court on 19 March 2010 and as part of the directions for the hearing of that appeal the applicant was given liberty to amend the grounds of appeal to plead the question of law provided that such amendment has been filed and served at least 28 days prior to the hearing of the appeal.
The applicant did not lodge any amendment to his appeal.
At the hearing of the appeal the applicant appeared and indicated, for the first time, that he intended to lodge an appeal under the ADJR Legislation.
That application was, in fact, filed on 20 April 2010.
The applicant was legally represented at the time of the decision and has continued to be represented by the same legal representative (albeit in a different capacity) throughout these proceedings.
It should be noted though that the applicant appears to have lodged all relevant applications and material in support on his own behalf.
Katalin Fox is the respondent to the original appeal lodged in this Court by the applicant. Although she is not a party to the applicant’s ADJR application, she was given leave to make submissions in this application as an interested party.
Principles in the application
The CSRC Act does not provide a time limit for a review of a decision made under s.101(5)(c) of the CSRC Act.
Although the CSRC Act provides 28 day time limits in many of its provisions, I accept the provisions made on behalf of the Executive Director that, having regard to s.11 of the AD(JR) Act, ss.(4):
Where:
a. no period is prescribed for the making of applications for orders of review in relation to a particular decision,
........ the Federal Magistrates Court may:
c. in a case in which paragraph (a) applies – refuse to entertain an application for an order of review in relation to the decision referred to in that paragraph;…
……..
if the Court is of the opinion that the application was not made within a reasonable time after the decision was made.
As a general principle, prima facie proceedings not commenced in time should not be entertained (see Lucic v Nolan (1982) 45 ALR 411 at 416). However, Fitzgerald J in Lucic considered that justice was the ultimate object to be obtained by the exercise of the discretion and justice required that regard be had to broader considerations than merely the interests of the applicant.
I accept the submissions of the Executive Director that in seeking an extension of time, the applicant seeks an indulgence. It is for him to prove that he is entitled to it, but the Court should not surround the exercise of its discretion with unnecessary constraints such as a requirement that there be special circumstances or considerations of that kind.
The principles that govern applications for an extension of time are well established and are summarised by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 58 ALR 305 at 310 and 311.
Decision – Discussion and conclusion
In this matter, although the applicant was taking action from
30 October 2009, there is no explanation as to the delay until
30 October 2009, and his affidavit does not deal with the period between the decision to remove him as a party and the correspondence of 30 October 2009.
I am not satisfied that there has been an adequate explanation for the delay by the applicant. In coming to that conclusion I am satisfied that, as and from October 2009, the applicant was taking action to challenge the decision (albeit in a flawed and incompetent way). There is, however, no explanation for the fact that no action was taken in the three months after the decision was made.
I am also satisfied that some prejudice may be suffered by both the Child Support Agency and Ms Fox in the further delays that will be occasioned if this matter is to be determined on its merits. However that prejudice is likely to be ameliorated if the application can be heard and determined in a timely manner.
I accept that there is now a significant outstanding liability payable by the applicant for his child support obligations.
The issue then is whether there are any overriding considerations of justice that would warrant the application being determined on its merits.
The applicant argues that the decision effectively denied him a review on the merits of the objection decision made by the Child Support Agency.
The decision of the Child Support Agency was that, for the period from 25 March 2008 to 30 June 2008, the applicant should be assessed on the basis of a child support income amount of $66,000 per annum and that for the period 1 July 2008 to 31 December 2009, he should be assessed on the basis of a child support income of $125,780.
He objected to that decision but his objection was dismissed.
The decision to remove him as a party appears to have been based upon two findings:
a)that he failed to comply with a direction made by the SSAT in the conduct of the matter; and
b)as a consequence, that he had failed to properly disclose relevant financial information that was necessary for the SSAT to determine the application.
The SSAT is effectively the last merits review of an application to depart from the administrative assessment of child support. It is the only external review of a change of assessment application under Part 6A of the Child Support (Assessment) Act 1989.
Any appeal from the SSAT is on a question of law only.
Whilst the object of the legislation is beneficial and to ensure that children have their proper financial needs met, the determinations of the Child Support Agency and the SSAT are nevertheless likely to have reasonably significant financial consequences for the parents of the children.
Whilst it is difficult to assess the merits of the appeal, nevertheless an important consideration of justice is involved, namely the right of an applicant to have a determination of an application on its merits.
I consider that that principle is sufficiently important for this application to proceed to be determined according to the merits and as a consequence, I will allow the application to proceed and list the matter for further hearing. I am able to list this matter for hearing on 16 June 2010. It is ready to be heard and determined and the delay should not unduly cause further prejudice to other parties.
I will list the application for hearing on 16 June 2010 before FM Jarrett and give leave for Katalin Fox to appear as a person interested in the application.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Slack FM
Associate: Karen Smith
Date: 1 June 2010
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