Somer v Child Support Registrar

[2016] FCCA 49

FEDERAL CIRCUIT COURT OF AUSTRALIA

SOMER v CHILD SUPPORT REGISTRAR & ANOR [2016] FCCA 49

Catchwords:
CHILD SUPPORT – Application for an extension of time within which to commence an appeal – whether explanation for delay – whether proposed appeal had any merit – where proposed appeal has no merit – where it is not in the interests of the parties to extend time within which to institute appeal.

Legislation:

Child Support (Registration and Collection) Act 1988, s.103N

Federal Circuit Court Rules 2001, rr.3.05, 25A.06(2)

Gallo v Dawson (1990) 93 ALR 479
Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257

Applicant: MS SOMER

First Respondent: CHILD SUPPORT REGISTRAR

Second Respondent: MR SAXBY

File Number: BRG 532 of 2015

Judgment of: Judge Jarrett

Hearing date: 21 August 2015

Date of Last Submission: 21 August 2015

Delivered at: Brisbane

Delivered on: 15 January 2016

REPRESENTATION

The applicant appeared in person

Solicitor for the First Respondent: Ms Nixon

Solicitors for the First Respondent: Lander & Rogers

No appearance for the Second Respondent

ORDERS

1. The amended application filed by leave on 21 August, 2015 seeking an extension of time within which to commence an appeal pursuant to s.110B of the Child Support (Registration and Collection) Act 1988 be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Somer v Child Support Registrar & Anor is approved pursuant to s.110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 532 of 2015

MS SOMER

Applicant

And

CHILD SUPPORT REGISTRAR

First Respondent

MR SAXBY

Second Respondent

REASONS FOR JUDGMENT

1. By way of an amended Notice of Appeal dated 12 August, 2015 and filed in Court on 21 August, 2015 Ms Somer seeks to appeal a decision of the Social Security Appeals Tribunal made on 16 February, 2015 that, in practical effect, affirmed a decision of the Child Support Registrar to accept an application for a child support assessment taken to have been made by Mr Saxby on 24 January, 2013 in respect of the parties’ child X.

2. The second respondent did not appear at the hearing before me.  I am satisfied, however, that he had appropriate notice of Ms Somer’s amended application and the affidavit that she wished to rely upon in these proceedings.

3. By her Amended Notice of Appeal, Ms Somer seeks orders to the effect that:

   a)the time for instituting the appeal be enlarged;

   b)the decision of the Social Security Appeals Tribunal dated 16 February 2015 be set aside; and

   c)the matter be remitted to the Social Security Appeals Tribunal to be determined according to law.

4. In the event that time for instituting her appeal is enlarged, Ms Somer proposes to rely upon seven grounds of appeal.

5. The decision of the tribunal that Ms Somer wishes to challenge was given on 16 February, 2015. She had 28 days from the date upon which she received that decision within which to commence an appeal as of right against it: r.25A.06(2) of the Federal Circuit Court Rules2001. However, the Court may extend the time for filing an appeal if it was not filed within that time: r.3.05 FCCR.

6. There is evidence that the tribunal’s decision was posted to Ms Somer on 26 February, 2015.  There is no evidence as to when she received it, although her affidavit, filed before me by leave, seems to suggest that she had received the tribunal’s decision by no later than 13 March, 2015.

7. Ms Somer filed her original Notice of Appeal on 26 May, 2015.  It is agreed that the appeal was not commenced within the time required by the FCCR and consequently Ms Somer seeks an extension of time within which to do so.  The relevant documents were filed at least more than six weeks out of time.  It is quite possible that it was longer than that.

8. The factors to be considered in determining whether to extend time include:

   a)the reasons for Ms Somer’s failure to file the appeal within the time provided by the Rules;

   b)the history and nature of the litigation;

   c)the conduct of the parties;

   d)the consequences for the parties of the grant, or the refusal to grant, the extension of time;

   e)the desirability of finality in litigation and the relevance of costs orders; and

   f)the prospects of the application in respect of which the extension of time is sought.

9. Ultimately, however, “The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties”: Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257; Gallo v Dawson (1990) 93 ALR 479 at [2]. “This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant”: Gallo v Dawson (above).

10. The reasons why Ms Somer did not file her appeal in time are a little unclear.  The reasons given by her in her affidavit for not commencing the appeal within time limit are that:

    a)she commenced new employment on 25 February, 2015 which delayed her making an application to Legal Aid Queensland for assistance;

    b)on 13 March, 2015 she lodged an application with Legal Aid; and

    c)Ms Somer did not receive a response from Legal Aid until 7 May, 2015.

11. She says that, without the benefit of legal advice, she could not file her notice of appeal.  However, the first respondent’s material (affidavit of Mr C filed on 6 August, 2015) reveals that by 30 March, 2015 Ms Somer had prepared:

    a)an initiating application seeking orders against the Registrar and others; and

    b)an affidavit in support of the initiating application

    although she had not filed those documents.  Those documents were detailed and seemingly, prepared with legal assistance.  There is no explanation as to why those documents could be prepared rather than a notice of appeal such as that in the present proceedings.

12. The first respondent submits that, in the context of the applicant being in a position to prepare the initiating application and supporting affidavit and having legal representation, the Court should place little weight on the reasons for delay provided by the applicant.  I accept that submission.

13. The amended Notice of Appeal concerns a decision of the tribunal which affirmed a decision of an objections officer which, in turn, affirmed a decision of the Child Support Registrar made on 27 August, 2014.  That decision was a decision to treat a notification by Mr Saxby to the Child Support Registrar about a change in the care arrangements for X as an application for an administrative assessment of child support in light of those changed arrangements.  The effect of the decision was to create a liability for child support for Ms Somer, in favour of Mr Saxby.

14. There has been a long history of dispute between Ms Somer and Mr Saxby about child support.  There is another decision of the tribunal given on 2 May, 2014 which is relevant to this matter and about which I will say more later in these reasons.  It is sufficient at the moment to record, however, that Ms Somer’s proposed grounds of appeal and her submissions fail to appreciate the substance and effect of each of the decisions and the impacts of each upon the other.

15. The first respondent points out that important matters, such as the nature of this appeal were brought to Ms Somer’s attention at the first court date for this application.  Specifically, he points out that:

    a)the appeal was listed for mention on 14 July, 2015;

    b)at that mention, Ms Somer was informed about the requirement for an appeal from a decision of the tribunal to be on a question of law;

    c)the nature of a question of law, as distinct from a finding of fact, was also explained to Ms Somer;

    d)Ms Somer was given an opportunity to file an Amended Notice of Appeal and an affidavit in support of her application for an extension of time.

16. The directions made on 14 July, 2015 required Ms Somer to file and serve any material in support of her application for an extension of time by 24 July, 2015.  On 29 July, 2015 Ms Somer was granted an extension of time to file her material until 31 July, 2015.

17. Ms Somer served her amended Notice of Appeal and affidavit in support of her application for an extension of time on 13 August, 2015 although she never filed it with the Court.  Those documents were filed by leave in court at the hearing of the application.

18. The first respondent points out that the applicant has neither complied with the Court’s rules nor the directions made by the Court on 14 and 29 July, 2015.

19. Save for the question of costs, the first respondent does not suggest that there is any particular prejudice to the first respondent if the extension of time is granted.

20. The first respondent submits that the greater impact of an extension of time will be upon the second respondent.  But the second respondent cannot, in my view, be particularly concerned about the impact upon him of the present application because he has chosen not to participate in it.

21. The first respondent suggests that it is desirable that the litigation between these parties be finalised.  That is the purpose, or at least one of them, for fixing of time under the Court’s rules.

22. The prospects of the underlying appeal are relevant to a consideration of the present application.  It is to that matter that I now turn.

23. In that respect, the first respondent concedes that if a valid question of law was raised by Ms Somer arising from the tribunal’s decision and if the answer to that question of law might lead to a different outcome before the tribunal, the interests of justice would demand the enlargement of time sought by Ms Somer, and the allowing of her appeal.  However, the first respondent argues that the amended Notice of Appeal does not raise any questions of law, let alone any question, the answer to which would justify the granting of the enlargement sought by Ms Somer.  The first respondent submits that the Amended Notice of Appeal raises no questions of law and that there are no novel or complex matters at issue between the parties. 

The tribunal decision

1. The decision which Ms Somer wishes to challenge is that made by the tribunal on 25 February, 2015.  By that decision the tribunal affirmed a decision of an objections officer to reject an application

2. The background to the tribunal’s decision is succinctly stated by the tribunal as follows:

   1.  Ms Somer and Mr Saxby are the parents of X, born (omitted) 1996.

   2. X had been recorded as being in Ms Somer’s 100% care. On 24 January 2013 Mr Saxby advised the Child Support Agency (‘CSA’) that X had been in his full-time care since 7 January 2013. The CSA accepted that change of care for X from 7 January 2013.

   3. On 26 July 2013 Ms Somer advised the CSA that Mr Saxby did not have care of X from 2 July 2013 as X was living as a member of a couple with her boyfriend, Mr C. On 22 August 2013 the CSA refused to change the care recorded for X.

   4. Ms Somer objected to that decision, and the objection was disallowed. Ms Somer sought review of that decision by this Tribunal.

   5. On 13 January 2014 the CSA determined that a terminating event had occurred in relation to X on 7 January 2014 when she left Australia to live with Mr C in (country omitted).

   6. On 2 May 2014 this Tribunal, differently constituted, determined that a terminating event had occurred in relation to X on 29 June 2012 when she left both parents’ care.

   7. On 5 September 2014 the CSA accepted an application for child support assessment from Mr Saxby with effect from 24 January 2013, being the date he advised the CSA he had full-time care of X. Mr Saxby was recorded as having 100% care of X from 24 January 2013 until the liability was ended on 7 January 2014 (as previously determined by the CSA).

   8. Ms Somer objected to the decision to accept the application for child support assessment. On 17 November 2014 an objections officer disallowed the objection.

   9. Ms Somer then applied for review by the Tribunal. The Tribunal hearing was held on 16 February 2015.  Ms Somer and Mr Saxby attended the hearing by conference telephone and gave sworn evidence.  Ms Somer was also represented by her brother, Mr P.

3. It is the decision of the objections officer to disallow Ms Somer’s objection to the decision of the child support registrar to accept Mr Saxby’s application for child support assessment which was the subject of the tribunal’s decision.  It is that decision that Ms Somer seeks to challenge these proceedings. 

4. The tribunal identified that Mr Saxby needed to establish that he was an eligible carer for X as at the date of his application namely 24 January, 2013.  Despite the tribunal earlier determining that X was living as a member of a couple with her boyfriend from 2 July 2013, the tribunal determined that there had been a change in circumstances when X’s boyfriend had been sent to prison on (omitted) 2012.  Upon her boyfriend being incarcerated, X moved to live with Mr Saxby in Sydney from at least 7 January, 2013 and remained there until she moved to (country omitted) with her boyfriend from 7 January, 2014.

5. The tribunal identified the critical issue as whether X was living as a member of a couple as at the date upon which Mr Saxby applied for a child support assessment in respect of her.  If she was, in effect, he was not entitled to apply for the child support assessment.  After reciting and considering the evidence that bore on that issue, the tribunal said:

   28. On balance, the Tribunal finds that X and Mr C ceased to be members of a couple from at least 7 January 2013 when X moved to Sydney. At that time the previously existing financial intermingling, social and sexual aspects of the relationship no longer existed. They no longer lived together. Whilst they maintained a degree of commitment to each other during the period Mr C was in prison, the new arrangements were to continue for an extended period of time and the Tribunal has concluded the commitment can at best be described as a commitment to resume their relationship as members of a couple when Mr C was released from prison and was able to once again resume living with X.

   29. Therefore, as at 24 January 2013, X was not a member of a couple with Mr C. The Tribunal is also satisfied that Mr Saxby was caring for X at that time as he was financially and emotionally supporting X.  X undertook some casual work, which was the subject of a change of assessment application lodged by Ms Somer. The senior case Officer who considered that application determined that the employment income received by X did not make the child support assessment unjust or inequitable.  That decision was not objected to by Ms Somer and the Tribunal is satisfied that any income X received was not sufficient to support herself so that she could be considered to be living independently during that time.

The purported questions of law

1. None of the grounds of review specified by Ms Somer in her amended Notice of Appeal are framed as questions of law.  At best, the grounds are set out as argument and submission.  Nonetheless, I will address each individually.

2. By the first ground Ms Somer seeks to contend that the tribunal failed to identify whether it had jurisdiction on 16 February, 2015 “in circumstances where the decision under review had already been considered and determined by a differently constituted tribunal on 2 May, 2014.”  Ms Somer argues that once the tribunal had validly exercised its decision-making powers, “it is functus officio” and the application cannot be reopened.

3. This ground misunderstands the tribunal’s decisions given on 2 May, 2014 and 16 February, 2015.  The former decision related to a child support terminating event that was constituted by X leaving the care of both of her parents to live with her boyfriend.  The latter decision related to the eligibility of Mr Saxby to make an application for a child support assessment in respect of X.  One of the issues to be determined by the tribunal on that application was whether, as at 24 January, 2013 X was living as a member of a couple.  As the tribunal pointed out in its reasons for decision given on 16 February, 2015 there have been a change in circumstances for X on 5 December, 2012 when her boyfriend had been sent to prison.  For the reasons that the tribunal gave on that day, it determined that as at 24 January, 2013 she was not living as a member of a couple.  The tribunal determined that Mr Saxby was otherwise entitled to make an application for a child support assessment in respect of X.

4. The tribunal was not functus officio because the issue that the tribunal was called upon to determine on 16 February, 2015 had not previously been determined by it.  The issue determined by the tribunal’s decision given on 2 May 2014 was different to the issue determined by the tribunal 16 February, 2015.

5. This ground of review is bound to fail.  

6. The second ground contends that the tribunal was wrong to affirm the objection decision because the objection decision, in effect, permitted Mr Saxby to make two applications for the assessment of child support in respect of the same child support period commencing on 24 January, 2013.  In this ground in her amended application, Ms Somer argues:

   In accepting that it was open to the Registrar of the CSA to accept the child support application
that was made on either 16 July 2014, 27 or 28 August 2014 effective from 24 January 2013 the Tribunal has misapplied and/or misunderstood the law as set out in s 31 of the CSA Act where the child support period starts from the date of the application being made to the CSA.


7. Again, however, Ms Somer’s argument proceeds on a factual basis that is not made out in the material before me.  I have had regard to the objections officer’s decision that is annexed to the affidavit of Mr C at page 89.  From that decision it is apparent that:

   a)as at 7 January, 2013 there was in place a child support assessment in respect of X that required Mr Saxby to make payments of child support to Ms Somer;

   b)on 24 January, 2013 Mr Saxby notified the Child Support Registrar that X had come to live with him for 100% of the time;

   c)as a consequence, the Child Support Registrar issued another assessment of child support that changed the then existing assessment so that Ms Somer was required to pay to Mr Saxby, child support in respect of X;

   d)that assessment remained in place until, by an SSAT decision made on 2 May, 2014 the tribunal found that a child support terminating event had occurred on 29 June, 2012.  That decision brought to an end, as from 29 June, 2012 the child support assessment that had been originally issued in respect of that period and which was varied upon Mr Saxby notifying the Child Support Registrar of the change in care arrangements for X in January, 2013;

   e)consequently, on 16 May, 2014 the SSAT decision was implemented by the department to reflect the child support terminating event for X from 29 June, 2012.

8. In the words of the objections officer, what then happened was:

   On 16 July, 2014 the department made the decision that [Mr Saxby] had made an application for child support for X from 24 January 2013 when he had originally informed us that X was in his care.

9. There were never two child support assessments issued on the application of Mr Saxby that were operative and which covered the same child support period as Ms Somer alleges.  There was one, issued on 14 May, 2013 for the period 7 January, 2013 to 25 March, 2013 which was issued after Mr Saxby notified the Child Support Registrar of the change to X’s care arrangements.  However, that assessment was overtaken by the tribunal decision of 2 May, 2014 which found a child support terminating event from 29 June, 2012.  Thereafter the Child Support Registrar treated Mr Saxby’s notification of the change in care arrangements for X on 24 January, 2013 as an application for child support.  An assessment was issued on 5 September, 2014 for the period 24 January, 2013 to 25 March, 2013.

1. The Child Support Registrar was entitled to treat Mr Saxby’s notification in the way that was done.  In effect, there was no action by Mr Saxby in 2014 that might be seen to constitute an application for child support.  That action was his request for the Registrar to record the change in X’s care arrangements in January, 2013.  The Registrar was entitled to approach Mr Saxby request in 2013 on that basis, in light of the tribunal decision of 2 May, 2014.

2. In my view ground 2 raises no question of law.

3. Ground 3 seeks to cavil with the tribunal’s fact finding concerning the nature and extent of the relationship between X and her boyfriend following his incarceration.  The tribunal’s reasons reveal a thorough and considered approach to this question.  Ms Somer’s amended Notice of Appeal alleges that the tribunal “applied the wrong test”, but the correct test is not identified.  To the extent that she suggests that the tribunal fell into error by concerning itself with the period between 29 June, 2012 and 7 January, 2013 her argument misunderstands the tribunal’s decision.  The tribunal determined that as at 7 January, 2013 Mr Saxby was an eligible parent entitled to apply for an administrative assessment of child support.  However, if at the same time X was living a member of a couple, Mr Saxby’s application could have no practical consequence because that would bring the liability for child support to an end.  Accordingly, the tribunal concerned itself with whether X was living as a member of a couple for the period from 7 January, 2013 until she left the country in January, 2014.  The tribunal found, as a matter of fact, that she was not.

4. Further, contrary to the assertions in Ms Somer’s amended Notice of Appeal, it was entirely necessary for the tribunal to make findings of fact about whether X and her boyfriend were members of a couple or in a de facto relationship.  As both the objections officer and the tribunal pointed out, there had been a change in circumstances since the tribunal’s decision of 2 May, 2014 and accordingly it was necessary to consider that question and determine if there was still an operative child support terminating event.

5. No question of law arises under this ground of the amended Notice of Appeal.  The ground seeks to engage in impermissible review of the fact finding by the tribunal.

6. Ground 4 also seeks to cavil with the tribunal’s fact finding function.  No question of law is raised by ground 4 of the amended Notice of Appeal.

7. Ground 5 misunderstands the nature of the child support decision made in July, 2014, the objection decision and the tribunal’s decision made in February, 2015.  Ms Somer argues that:

   14.    The Tribunal failed to consider the findings of fact made by the Tribunal on 2 May 2014 in determining whether Mr Saxby was eligible to make an application for child support in accordance with s7B of the CSA act. The Tribunal at para [14] of its decision ‘unless either parent had at least 35% care of X on 24 January 2013, a terminating event would occur on the same day as Mr Saxby’s application was made and so effectively the application would be refused and no child support liability would arise. 


   15.    The parties, in their evidence before the Tribunal on 2 May 2014, agreed that the events of June 2012 gave rise to a terminating event for the purposes of s l 2(2AA) of the CSA Act and invited the Tribunal to make findings of fact that from 29 June 2012 neither parent had any care of X and from that date neither parent were eligible carers and that there was no non parent carer entitled to child support’ (at para [8] of Tribunal decision dated 2 May 2014). It is noted that the agreement between the parties wasn’t that neither parents had any care from 29 June 2012 to 7 January 2013.

8. The ground implicitly suggests that the earlier decision of the tribunal given on 2 May, 2014 bound the subsequent tribunal that was called upon to determine the nature of the relationship between X and her boyfriend as at 7 January, 2014 onwards.  It did not.  The very point of the subsequent decision was to address a change in circumstances that had arisen since the earlier tribunal decision.  X remained a child in respect of whom a child support assessment could be issued if all of the necessary requirements were present.  That is to say, the child support terminating event of 29 June, 2014 did not terminate the parents’ right to or liability for child support at all times thereafter.  Those rights and liabilities could be revived depending upon the circumstances that prevailed at any point in time.

9. This ground reveals no question of law.

10. By ground 6 of Ms Somer’s amended Notice of Appeal, Ms Somer argues:

    17. The Tribunal failed to observe the principles of natural justice and denied the appellant procedural fairness in that she was not made aware that the Tribunal at para [29] of its decision would make findings of fact about an application or matter that was not pressed by the appellant at the hearing on 16 February 2015.

    18. It was not open to the Tribunal to make findings of fact about an application for departure of administrative assessment of child support made by the appellant on 8 January 2014 in which she sought that child support be reduced by reason of X’s income, financial resources and earning capacity. The decision of the CSA is dated 13 February 2014. That application was not pursued by the appellant, either by way of the CSA-objection process, nor did it form part of the review in February 2015. It could be argued that the CSA misapplied the correct test in making this decision.

11. I have set out paragraph 29 of the tribunal’s decision earlier in these reasons.  I will not repeat it.

12. The decision that was the subject of Ms Somer’s objection which ultimately led to the tribunal decision under consideration in this case, was a decision made by the Child Support Registrar on 27 August, 2014 to accept a child support registration from Mr Saxby for X from 24 January, 2013.  There was no submission that such a decision was not capable of being the subject of an objection.  Indeed, Ms Somer engaged the objection procedure provided in the Child Support (Registration and Collection) Act 1989 in respect of the Child Support Registrar’s decision to treat Mr Saxby’s notification of a change in the care arrangements for X as an application for an administrative assessment of child support.

13. The tribunal’s task upon an application for review being made to it was to review the decision of the objections officers in respect of which the objection had been made.  In the present case, that meant that the tribunal was obliged to review the decision of the objections officer on Ms Somer objection.  In the reasons of the objections officer, Ms Somer’s objection was described as follows:

    Applicant’s grounds for review:

    Ms Somer has written to object to this decision on the grounds that the Social Security Appeals Tribunal had determined X was in neither parents’ care from 29 June 2012 and that X was still in a de-facto relationship.

14. The objections officer next set out what the review carried out by that officer entailed:

    In considering this objection, a full merit review of the original decision has been conducted. This means that we have examined and evaluated all the relevant information in order to reach a conclusion based on the relevant facts of the case and how the law is applied to those facts.

15. Thus, it will be appreciated by reference to those two paragraphs from the objection officer’s decision that Ms Somer’s objection application related to the care of X from 29 June, 2012 by her parents and that the objection officer carried out a review in respect of the care arrangements for her from 29 June, 2012.  That, of course, was entirely appropriate given that the decision to which Ms Somer objected was a decision that was based upon Mr Saxby’s notification to the Child Support Registrar that X had returned to his care on 7 January, 2013.

16. Again, Ms Somer’s grounds of review misunderstand the nature of the tribunal’s decision.  The tribunal did not make findings of fact about an application for departure of administrative assessment of child support made by Ms Somer on 8 January, 2014 in which she sought that child support be reduced by reason of X’s income, financial resources and earning capacity.

17. Further, to the extent that Ms Somer argues that the tribunal failed to observe the principles of natural justice and denied her procedural fairness in that she was not made aware that the tribunal at para [29] of its decision would make findings of fact about an application or matter that was not pressed by her at the hearing on 16 February 2015, the ground of review is meritless.  In paragraph 29 of the tribunal’s decision, the tribunal expressed the conclusions that it had reached on the review it had conducted at Ms Somer’s invitation.  The tribunal’s review went no further than was necessary to properly consider Ms Somer’s application for review of the objection officer’s decision.

18. Ground 6 of the amended Notice of Appeal raises no questions of law and has no merit.

19. Proposed ground of review 7 in Ms Somer’s amended Notice of Appeal asserts that the tribunal failed to adequately consider the matters set out in the Child Support Guide Chapter 2.2.1 on determining care and in particular “who has responsibility for making arrangements for decisions about the child’s welfare as well as who is meeting the child’s costs”.  Ms Somer argues that the tribunal made findings of fact that were not supported by any evidence.  In particular, she argues that the tribunal’s finding that Mr Saxby was caring for X as at 24 January, 2013 as he was financially and emotionally supporting X was unsupported by any evidence.

20. When reviewing a decision, the tribunal is not bound by legal technicalities, legal forms or rules of evidence: s.103N of the Child Support (Registration and Collection) Act1988.  The tribunal’s reasons for decision reveal that it had regard to information from a number of sources, including information placed before the Child Support Registrar on an application made by Ms Somer on a January, 2014 which have been determined by the child support registrar and in respect of which, Ms Somer had made no objection.  Moreover, the tribunal was not bound to consider the review application by reference to the material that was before the objections officer only.

21. To the extent that this ground of review suggests that the tribunal made a finding of fact in respect of which there was no evidence (an error of law if it occurred) the material before me, including the tribunal’s reasons for decision and the objection officer’s decision reveal that there was such evidence before the tribunal for the purposes of making the finding.

22. Accordingly, this ground of review also raises no question of law the answer to which would lead to a different result than that arrived at by the tribunal.

Conclusion

1. Ms Somer has provided some explanation for her delay in commencing her appeal within the time limited by the Court rules.  The delay is at least six weeks in length.  Although neither the first or the second respondent are likely to suffer any particular prejudice (save for costs) if the requested extension is granted, the lack of prospects of the underlying appeal weigh heavily against the extension sought by Ms Somer.  That her underlying appeal is bereft of merit means that the consequences for Ms Somer if her appeal is not permitted to proceed are of little weight.

2. An extension of time is not necessary in this case to do justice between the parties.  The application must be dismissed.

3. The first respondent does not seek an order for costs.

I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge Jarrett

Date:  15 January 2016