Stokes and Child Support Registrar (Child support)

[2019] AATA 5203

Stokes and Child Support Registrar (Child support) [2019] AATA 5203 (8 October 2019)

DIVISION:Social Services & Child Support Division

EXTENSION APPLICATION

NUMBER:2019/BC017166

APPLICANT:  Mr Stokes

OTHER PARTY:  Child Support Registrar

DATE DECISION MADE:               8 October 2019

APPLICATION:

An extension application made on 15 August 2019 asking the AAT to consider the application for AAT first review of a decision of the Child Support Registrar on 31 January 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 - questionable merit - 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 Stokes for an extension of time to apply to the Tribunal against a decision of the Child Support Agency (CSA) concerning a “change of assessment” decision. His objection to the decision was disallowed.

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 Stokes was required to make his application within 28 days of receiving the decision letter of 31 January 2019.

3. Mr Stokes made an application for AAT first review on 15 August 2019, well outside the 28-day period.  In his written application to the Tribunal, he advised the following:

   After the objection I spoke with a officer who incorrectly advised that the assessment amount would change after I lodged a tax return for 2017/18. I lodged the return but the assessment did not change based on the tax return amount. I have recently been advised by DOCS officers to apply for a review and an extension based on incorrect advice from DOCS and the conduct of the person who conducted the objection.

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 be fatal to an application for an extension of time.

2. The CSA records do not record that Mr Stokes was given the advice he says he was given; such advice would not have been correct.  He may have misunderstood advice provided by the CSA.

3. Regardless, Mr Stokes was clearly advised in the written correspondence that if he thought the decision was wrong, he was required to apply to the Tribunal within 28 days of receiving the decision. He elected not to pursue his rights at the time.

1. The Tribunal does not find compelling the explanation for what is a lengthy delay. 

Merits of the objection

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

11.Departure decisions, by their nature, involve the exercise of a relatively broad discretion. Even though the decision of the CSA appears entirely reasonable on the evidence available to it, it could not be said that an application, if permitted to proceed, would be devoid of possible merit.

Potential prejudice to the other party

12.The Tribunal is particularly concerned about potential prejudice to the other party. [Ms A] was entitled to rely and budget upon the decision to support the children in the absence of an objection within the 28-day period. The Tribunal observes the delay here is not short; this factor weighs heavily against granting an extension.

Public interest considerations

13.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

14.Mr Stokes does not have a reasonable explanation for what is a lengthy delay given he was clearly informed in writing of his objection rights. The Tribunal is also very concerned about the possible prejudice to [Ms A] given the protracted delay.

15.Accordingly, the Tribunal considers the interests of justice are best served by refusing an extension of time.

16.The Tribunal observes that if Mr Stokes is of the view that there has been a material change in the circumstances of his case, he may make a fresh application for a change of assessment with the CSA at any time.