Smalling and Child Support Registrar (Child support)

[2020] AATA 902

Smalling and Child Support Registrar (Child support) [2020] AATA 902 (16 January 2020)

DIVISION:Social Services & Child Support Division

EXTENSION APPLICATION

NUMBER:2019/HC017598

APPLICANT:  Mr Smalling

OTHER PARTY:  Child Support Registrar

DATE DECISION MADE:               16 January 2020

APPLICATION:

An extension application made on 10 October 2019 asking the AAT to consider the application for AAT first review of a decision of the Child Support Registrar on 1 April 2019 despite the period for applying for review having ended.

DECISION:

The extension application is refused.

CATCHWORDS

CHILD SUPPORT – application for extension of time – no satisfactory explanation for the delay – arguable merit – prejudice to the other party – extension of time refused

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 16(2AB)-16(2AC) of the Child Support (Registration and Collection) Act 1988.

STATEMENT OF REASONS

1. This is an application by Mr Smalling for an extension of time to apply to the Tribunal for review of a decision of the Child Support Agency (CSA) dated [April] 2019. The CSA decided to disallow Mr Smalling’s objection to the CSA decision which refused to accept his application to reduce his child support liability.

2. There is a time limit to apply for “AAT first review”: see section 90 of the Child Support (Registration and Collection) Act 1988 and paragraph 29(1)(d) of the Administrative Appeals Tribunal Act 1975. Mr Smalling was required to make his application within 90 days (he resides in [another country]) of receiving the decision of [April] 2019 by post.

3. Mr Smalling made an application for AAT first review [in] October 2019, well outside the 90-day period. In his written application, Mr Smalling advises that he received the decision [in] May 2019 and that “the decision letter did not arrive until well after the exclusion period, I have been attempting to address this with CSA since then but CSA refuse to listen to reason or fact”.

4. The established cases indicate that the starting position is the prima facie rule that proceedings commenced outside a statutory period will not be entertained (Lucic v Nolan (1982) 45 ALR 411 at 416). However, the primary concern “is to do that which will enable justice to be done between the parties” (see Martinsen v Secretary, Department of Family & Community Services [2004] FCA 297 per Spender J). Spender J quoted McHugh J in Gallo v Dawson (1990) 64 ALJR 459 as follows:

   In order to determine whether the rules [imposing time limits] will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time ...

   When the application is for an extension of time … it is always necessary to consider the prospects of the applicant succeeding in the appeal …

5. In line with Wilcox J’s survey of cases in Hunter Valley Developments P/L v Cohen (1984) 3 FCR 344, the Tribunal proposes to consider the matters identified in Gallo v Dawson under the following headings:

   ·the explanation for the delay;

   ·the merits of the substantial application;

   ·any prejudice to the other party, including any prejudice in defending the proceedings occasioned by the delay; and

   ·any public interest considerations that might flow from a successful application including “the unsettling of other people … or of established practices”.

Explanation for the delay

1. The absence of a reasonable explanation for delay will ordinarily exclude the granting of an extension of time.

2. Mr Smalling was clearly advised in writing of his right to appeal the objection decision to the Tribunal within a 90-day period. He says he received the decision letter [in] May 2019; however, he did not apply to the Tribunal until some five months later.

3. It appears Mr Smalling has rested on his rights; he does not have a reasonable explanation for not making his application within the statutory timeframe.

Merits of the objection

1. There is no point to granting an extension of time if an application is unlikely to succeed.

10.The decision of the CSA appears reasonable on the evidence available to it. However, it does not appear to the Tribunal that an application, if permitted to proceed, would be devoid of merit, particularly in the event Mr Smalling was able to supply further probative evidence concerning his financial arrangements during the period in dispute.

Potential prejudice to the other party

11.The Tribunal is particularly concerned about potential prejudice to the other party. She has been entitled to rely, and budget, upon the original decision. The delay here is not insignificant. This factor weighs heavily against an extension being granted.  

Public interest considerations

12.Parliament has seen fit to set a 28-day time limit for the lodgement of objections so that parents (and the CSA) can act with certainty as to the outcome when the objection period has elapsed. The public has an interest in reviews of decisions made by the CSA being performed in a timely fashion and in a manner that ensures all applicants are treated fairly and equally. Accordingly, an extension of the time for objection is not to be automatically granted.

Conclusion

13.Mr Smalling does not have a reasonable explanation for what is not an insignificant delay. The Tribunal is particularly concerned about the possible prejudice to the other party. 

14.In weighing all of the above, the Tribunal considers the interests of justice are clearly best served by refusing to grant an extension of time.