Thiel and Registrar of Marriage Celebrants
[2015] AATA 872
•12 November 2015
Thiel and Registrar of Marriage Celebrants [2015] AATA 872 (8 October 2015)
Division
General Division
File Number
2015/4381
Re
Benjamin Thiel
APPLICANT
And
Registrar of Marriage Celebrants
RESPONDENT
DECISION
Tribunal
Deputy President Dr Christopher Kendall
Date of oral reasons
8 October 2015
Date of written reasons
12 November 2015
Place
Perth
The Tribunal dismisses Mr Thiel’s application pursuant to section 42B of the Administrative Appeals Tribunal Act 1975 on the basis that the application is misconceived and has no reasonable prospect of success.
.......................[sgd].................................................
Deputy President Dr Christopher Kendall
CATCHWORDS
MARRIAGE - registration as marriage celebrant – celebrant registration charge – charge not paid within prescribed period – consequences of not paying charge within notified period – scope of discretion to give notice of deregistration on non-payment of charge – no discretion on part of Registrar – section 42B application asking that application be dismissed on the basis that application is misconceived and has no reasonable prospect of success – 42B application successful – substantive application dismissed
LEGISLATION
Administrative Appeals Tribunal Act 1975 – section 42B, section 43(2)
Marriage Act 1961 – sections 37J, 37JA, 37JB, 37JC, 39FA and 39FB
Minister’s Marriage (Celebrant Registration Charge) Determination 2014
CASES
Ballarto Pastoral Pty Ltd v Department of Primary Industries [2006] VCAT 478
Crompton v Victorian Workcover Authority [2013] VCAT 1010
Defence Force Retirement and Death Benefits Authority v House (2009) 49 AAR 525
Fayle and Commissioner of Taxation (2012) 57 AAR 506
Filsell and Comcare (2009) 109 ALD 198 at 206
General Steel Industries Inc v Commissioner for Railways NSW [1964] HCA 69; (1964) 112 CLR 125
Re Quinn v Australian Postal Corporation (1992) 15 AAR 519
Spencer v The Commonwealth [2010] HCA 28
Taylor and Repatriation Commission [2015] AATA 821
Thiel and Registrar of Marriage Celebrants [2015] AATA 524
REASONS FOR DECISION
Deputy President Dr Christopher Kendall
12 November 2015
BACKGROUND
On 20 August 2015 Benjamin Thiel applied to the Tribunal (the “substantive application”) for review of a decision of the Registrar of Marriage Celebrants (“the Registrar”), dated 12 August 2015, to deregister him as a marriage celebrant after 1 September 2015 on the ground of his non-payment of the celebrant registration charge by the charge payment day, as required by section 39FB of the Marriage Act 1961 (“the Act”).
On the same day, Mr Thiel requested that the Registrar’s decision be stayed pending resolution of his substantive application.
On 9 September 2015, the Registrar made an application to the Tribunal opposing Mr Thiel’s stay and requesting that his substantive application be dismissed pursuant to section 42B of the Administrative Appeals Tribunal Act 1975 (Cth) (the “AAT Act”) on the basis that the substantive application is misconceived and has no reasonable prospect of success.
On 8 October 2015 the Tribunal rejected Mr Thiel’s stay application and made a decision under s 42B of the AAT Act in the following terms:
“ The Tribunal dismisses Mr Thiel’s application pursuant to section 42B of the AAT Act on the basis that the application is misconceived and has no reasonable prospect of success.”
On this occasion the Tribunal, in accordance with s 43(2) of the AAT Act, gave reasons orally for this decision
On 19 October 2015 the Tribunal received a written request from the Registrar’s representative for a written statement of the Tribunal’s reasons for its abovementioned decision of 8 October 2015.
A written statement of the Tribunal’s reasons for its decision of 8 October 2015 follows.
FACTS
Thiel and Registrar of Marriage Celebrants [2015] AATA 524
The facts relevant to this matter were largely set out by Administrative Appeals Tribunal (“AAT”) Member Webb in his decision in Thiel and Registrar of Marriage Celebrants [2015] AATA 524, dated 17 July 2015.
Member Webb outlined the facts (which this Tribunal accepts) as follows:
4.The facts are set out in the document Statement of Agreed Facts fied by the parties – Exhibit 1. The key facts are as follows -
(a)Mr Thiel was registered as a marriage celebrant on 27 November 2009.
(b)On or about 24 July 2014 he was sent a notice in respect of the celebrant registration charge. The charge payment due date was said to be 22 September 2014.
(c)Mr Thiel did not apply for exemption from liability to pay the charge.
(d)On 29 August 2014, Mr Thiel was sent an emailed reminder that the registration charge was due by 22 September 2014. He accepts that he received this email.
(e)On the same day, Mr Thiel’s parents were involved in a fatal motor vehicle accident in South Australia, far from his home in Macedon in Victoria.
(f)On 2 September 2014, Mr Thiel travelled to South Australia.
(g)On 4 September 2014 he attended the site of the accident and viewed the wreck in the Police holding yard.
(h)From 5 to 18 September 2014 he made arrangements for his parents’ funeral.
(i)On 19 September 2014, a Public Memorial Service was held. This was followed by a Burial Service on 21 September 2014.
(j)On 22 September 2014, the day on which payment of the celebrant registration charge was due, Mr Thiel and his sister consulted family members and made decisions as Executors of their parents’ Estate.
(k)Mr Thiel did not pay the celebrant registration charge by the due date.
(l)In consequence of this, on 16 October 2014, the Registrar sent Mr Thiel a notice of deregistration. The date of effect was said to be 23 October 2014.
(m)On 5 November 2014, Mr Thiel received the notice of deregistration.
(n)On 6 November 2014, he lodged an application for review by this Tribunal.
(o)On the same day, he notified the registrar of changes to his address and contact details.
As explained by Member Webb, in Australia marriages can be solemnised by people who are registered to perform that function. Mr Thiel was one of those people. He was registered as a marriage celebrant and performed celebrant duties accordingly.
Registration of this kind is subject to payment of an annual charge. Failure to pay the charge results in deregistration. This is set out clearly in the Marriage Act 1961.
Mr Thiel’s registration lapsed. He was sent a notice, but he was dealing with a tragic family crisis that required his full attention. Nonetheless, as he failed to pay the registration renewal charge within the allotted time, he was deregistered by the Registrar.
As explained by Member Webb, Mr Thiel was understandably very upset by this decision. He applied for review to the AAT and in so doing sought some latitude or discretion to upset the deregistration decision on compassionate grounds.
In his decision, Member Webb indicated that was quite sympathetic to Mr Thiel's case. He explained, however, that under the legislative scheme, there is no latitude or discretion that can be exercised. That is so even though the particular circumstances of Mr Thiel’s case might be expected to attract a compassionate and flexible response.
In his reasons, Member Webb made clear (at [3], [19] and [31]) that “there is no latitude or discretion that can be exercised” in Mr Thiel’s case.
Member Webb noted (at [18]) that the only discretion available to the Registrar (and, therefore, to the Tribunal on review):
... is essentially preconditioned by the existence of circumstances that may affect the person’s liability to pay the charge. If no such circumstances exist, the discretion to not send a notice of deregistration is not enlivened …
The key findings of his decision were:
·Mr Thiel received a valid charge notice but failed to pay by the charge payment day (at [4], relying on agreed facts);
·Mr Thiel had not applied for exemption from the charge. As a consequence he was liable to pay the charge by the charge payment day (at [14]);
·in the absence of circumstances going to liability to pay the charge, if a celebrant fails to pay the charge by the charge payment day the registrar must send them a deregistration notice – there is no discretion not to do so (at [18]-[19]) (the corollary of this is that nothing which happens after the charge payment day is capable of affecting the outcome);
·deregistration is a mandatory consequence for someone who is liable to pay, failed to pay and received a proper notice of deregistration (at [19]);
·there is no scope in the regime for having regard to extenuating circumstances not affecting a person’s liability to pay the charge (at [24]-[25]);
·Mr Thiel’s circumstances did not go to liability (at [42], [47]).
Although the decision to deregister was found to be valid (indeed, required by the legislation), Member Webb found that the notice of deregistration dated 16 October 2014 did not strictly comply with the requirements of the legislation and was thus invalid. For this reason, and this reason alone, the decision under review was set aside and remitted back to the Registrar to reassess Mr Thiel’s marriage celebrant registration (at [51]-[54]).
Relevantly, in all other respects the Tribunal’s decision upheld the basis for the deregistration decision.
Current Substantive Application
This brings us to Mr Thiel’s current substantive application before this Tribunal.
On remittal, the Registrar again deregistered Mr Thiel for failing to pay the 2014-15 celebrant registration charge by the charge payment day. This occurred on 12 August 2015.
Mr Thiel then filed a new application in the AAT (the substantive application), arguing that the Registrar’s decision of 12 August 2015 to deregister him is not valid because, in effect, he had now paid the 2014-15 celebrant registration charge and had met his ongoing professional development (“OPD”) obligations.
Mr Thiel seeks a review of the Registrar’s decision of 12 August 2015 to deregister him for failing to pay the 2014-2015 celebrant charge by the charge payment date of 22 September 2014.
Mr Thiel also seeks a stay of the Registrar’s decision pending determination of the core issue.
By a letter of 9 September 2015 to the AAT, the Registrar:
·applied for a dismissal of the application under section 42B of the AAT Act; and
·opposed the grant of a stay of the reviewable decision.
In effect, the Registrar contends that although it sympathises with Mr Thiel, it does not have the discretion to do what Mr Thiel feels should be done. Nor, it argues, does the Tribunal. It is argued that Mr Thiel’s situation has already been reviewed by Member Webb and there is nothing in relation to this substantive application before this Tribunal that can alter Member Webb’s earlier findings. The Registrar contends that the legislation that binds it is inflexible in relation to Mr Thiel’s situation and, as such, the application should be dismissed pursuant to section 42B of the AAT Act on the basis that the application is misconceived and has no reasonable prospect of success.
ANALYSIS
Under section s 42B of the AAT Act, the Tribunal may dismiss an application for review if satisfied that the application is:
·frivolous, vexatious, misconceived or lacking in substance;
·has no reasonable prospect of success; or
·is otherwise an abuse of the process of the Tribunal.
The Tribunal has reviewed all of the material it has before it. This included:
·the decision of Member Webb dated 17 July 2015 and all of the evidence put before him;
·a letter from the Registrar to the AAT dated 9 September 2015 requesting a 42B application;
·written submissions from Mr Thiel’s solicitors dated 29 September 2015;
·written submissions in reply from the Registrar dated 30 September 2015.
I thank both the Registrar and Ms Cooper (on behalf of Mr Thiel) for their assistance and for the clarity of their written submissions in relation to the issue of whether Mr Thiel’s substantive application should be dismissed pursuant to section 42B of the AAT Act.
The Tribunal notes that the power to dismiss proceedings must be exercised with caution: General Steel Industries Inc v Commissioner for Railways NSW [1964] HCA 69; (1964) 112 CLR 125 at page 128 Barwick CJ.
The Tribunal also notes, however, that there is a strong public interest in finality in Tribunal proceedings. In Re Quinn v Australian Postal Corporation (1992) 15 AAR 519 the Tribunal said at 526:
…The Tribunal should be guided by the principles of "equity, good conscience and the substantial merits of the case, without regard to technicalities." [...] It would seem inappropriate and unreasonable to us for there to be relitigation without reason of the same issues before the Tribunal. It would be unjust to applicants to have to face a situation where a decision may be made today and relitigated tomorrow on the very same facts. The Tribunal should not generally allow relitigation of issues already decided and previous Tribunal decisions should be regarded as establishing the matters actually decided and of the grounds for the determination.
…
The Tribunal considers that there are strong reasons, both in case law and expressed in public policy, to limit the relitigation or continual review of substantively similar matters.
The Federal Court endorsed this approach in Defence Force Retirement and Death Benefits Authority v House (2009) 49 AAR 525. In that matter the Court said (at [27]-[28]):
In Re Quinn and Australian Postal Corporation at 526 the Tribunal stated:
[repeats above quote ‘It would seem ... .for the determination’]
That this principle applies in relation to decisions of the Tribunal appears settled law: Comcare v Grimes (1994) 50 FCR 60; 19 AAR 422 at [24], Cheung v Administrative Appeals Tribunal [2009] FCA 241 at [49]. In affirming the principle, the Full Court in Morales v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 374; 26 AAR 548 said at 390; 564:
In our view, the essentially administrative nature of the Tribunal’s function and the nature of its task in looking to the correct or preferable decision, in circumstances where it is to have regard amongst other things to the dictates of fairness, point to the conclusion that the Tribunal may, in appropriate circumstances, conclude that a previous decision should be applied again as the correct and preferable decision when it is sought to revisit the earlier decision at some later time.
Further, in Fayle and Commissioner of Taxation (2012) 57 AAR 506 the Tribunal held that seeking to reopen already decided matters was a ground for dismissal under s 42B of the AAT Act.
A core purpose underlying s 42B was also expressed by Jarvis DP in Filsell and Comcare (2009) 109 ALD 198 at 206:
… if proceedings have no reasonable prospect at all of success, they should be dismissed under section 42B, since it would be futile for the proceedings to continue, and inappropriate to use the time and resources of this Tribunal, and to put the respondent to the expense that would be involved in the matter proceeding to a hearing.
The Registrar argued before this Tribunal that the present case falls squarely within these well-settled principles. The Registrar contends that the issues which Mr Thiel seeks to ventilate have already been the subject of adverse findings by the Tribunal, in a proceeding in which he was a party. As such, it is argued, he should not be permitted to seek to litigate them again when nothing of substance has changed and nothing can be done to assist Mr Thiel regardless of how sympathetic one might be to his personal circumstances. Further, the Registrar contends, Mr Thiel cannot possibly hope to succeed as the Marriage Act does not allow the Tribunal to do what he wants it to do. Basically, the Tribunal has no discretion to assist him. Member Webb found this to be the case in July 2015 and there is nothing currently before this Tribunal that can alter that finding in so far as it relates to Mr Thiel on the current facts.
The Registrar submits that this is not a case where the decision by the Registrar involves some exercise of discretion which the applicant might hope to benefit from. As the previous decision of Member Webb makes clear, this is a non-discretionary area. The Tribunal’s hands are effectively tied. The technical deficiency in the notice having been addressed on remittal (a point not disputed by the parties before this Tribunal during the s 42B process), there is no prospect of Mr Thiel succeeding in relation to his substantive application. It is thus appropriate, it is argued, that the application be disposed of pursuant to s 42B of the AAT Act as the substantive application is misconceived and has no prospects of success due to the non-discretionary nature of the legislation in question.
The Tribunal agrees.
The meaning of “misconceived” has received surprisingly little analysis by the AAT. The Tribunal notes, however, that a similar statutory provision to section 42B exists in section 75 of the Victorian Civil and Administrative Tribunal Act 1998.
In that context, the Victorian Civil and Administrative Tribunal has extensively analysed the word “misconceived”. Relevantly, this Tribunal notes that in Ballarto Pastoral Pty Ltd v Department of Primary Industries [2006] VCAT 478, the VCAT stated (at [32]) that the word “misconceived” means “obviously untenable or groundless”. Further, in Crompton v Victorian Workcover Authority [2013] VCAT 1010 (at [19]), the VCAT found that an application was misconceived if the proceeding, were it to continue, “would be pointless”.
To repeat the words of Deputy President Hack in Taylor and Repatriation Commission [2015] AATA 821 at [6], no detailed analysis of the expression “no reasonable prospect of success” is necessary here and this matter does not require an analysis of the considerable jurisprudence in relation to similar phrases in other statutory environments (see, for example, Spencer v The Commonwealth [2010] HCA 28). This is not “a case at the margins”. As will be discussed below, within the context of the facts before it, the Tribunal cannot do what Mr Thiel would like it to do: ie, find a discretionary basis upon which to reverse the Registrar’s decision to deregister it. The Tribunal simply cannot do that and, as such, Mr Thiel has no reasonable prospect of success.
Turning to the facts of this matter, it is noted that nothing in Member Webb’s decision of 17 July 2015 suggested there had been any error in the Registrar’s decision to deregister Mr Thiel’s for failure to pay the 2014-2015 charge, or indeed that any other conclusion was open on the facts as agreed by the parties and as found by the Tribunal. What had not been done correctly related solely to the terms of the deregistration notice.
The evidence shows that following Member Webb’s decision, the Registrar issued Mr Thiel with a new deregistration notice as required by the Act, addressing the technical deficiency identified in Member Webb’s decision. Further, it is clear that the Registrar had no choice in this regard as the relevant legislation offers no discretion in relation to when the Registrar must deregister an individual.
The legislation that governs the registration of marriage celebrants in Australia is unambiguous. It is also remarkably inflexible.
In that regard, the Tribunal repeats the summary provided at paragraphs 12-22 in Member Webb’s decision, as follows:
12.A new charging regime came into effect on commencement of the Marriage (Celebrant Registration Charge) Act 2014. Liability to pay the ‘celebrant registration charge’ is established under s 39FA of the Marriage Act, a marriage celebrant is required to pay this charge in respect of each financial year by the ‘charge payment day’, unless an exemption has been granted. The amount of the charge is set out in the Minister’s Marriage (Celebrant Registration Charge) Determination 2014.
13.The discretion to grant exemption from liability to pay the celebrant registration charge is subject to the application requirements set out in regulation 37JB and satisfaction of one or more of the circumstances set out in regulation 37JC.
14.Mr Thiel did not apply for an exemption from liability to pay the celebrant registration charge under these provisions. He was liable, therefore, to pay the charge when it fell due.
15.A notice must be sent to each marriage celebrant who is registered as of 1 July each year setting out the amount of the celebrant registration charge and the charge payment date (being a day that is at least 30 days after the day on which the notice is sent). The notice is required to set out the information required by regulation 37J –
(2)A notice to a marriage celebrant under subsection 39FA(2) of the Act must state the following:
(a)that the marriage celebrant is liable to pay celebrant registration charge in respect of a financial year unless, before the end of the charge payment day, the marriage celebrant is granted an exemption from the liability to pay the charge in respect of the financial year;
(b)that the amount of celebrant registration charge that the marriage celebrant is liable to pay:
(i)is a debt due by the person to the Commonwealth; and
(ii)may be recovered by action in a court of competent jurisdiction;
(c)that the marriage celebrant may seek an exemption from the liability to pay celebrant registration charge in respect of a financial year by:
(i)applying for an exemption under subregulation 37JB; and
(ii)paying the charge exemption application fee;
(d)that the marriage celebrant must apply for the exemption no later than 14 days after the day on which the notice is sent;
(e)that a marriage celebrant who is liable to pay a celebrant registration charge and does not do so before the end of the charge payment day will be deregistered as a marriage celebrant under section 39FB of the Act.
16. Mr Thiel was sent a notice of this kind on 24 July 2014.
17.The consequences of non-payment of the celebrant registration charge by a person without an exemption are set out in s 39FB –
(1)If a person has not, by the end of the charge payment day, paid an amount of celebrant registration charge that the person is liable to pay, the Registrar of Marriage Celebrants must, as soon as practicable after that day, send the person a notice in accordance with subsection (2), unless the Registrar considers that the notice should not be sent at that time because the person’s liability to pay the charge may be affected by:
(a)the outcome of an application for internal review of a decision to refuse to grant an exemption; or
(b)any other circumstance of which the Registrar is aware.
Note: Depending on the outcome of matters referred to in paragraph (a) or (b), it may turn out that the person is not liable to pay the charge.
(2)The notice referred to in subsection (1) must:
(a)advise the person that, because the person has failed to pay celebrant registration charge, the person will be deregistered as a marriage celebrant after the day specified in the notice (being a day that is at least 7 days after the day on which the notice is sent); and
(b)comply with any other requirements prescribed by the regulations relating to the content of the notice, or how it is to be sent.
(3)The Registrar of Marriage Celebrants must deregister the person as a marriage celebrant by removing his or her details from the register of marriage celebrants as soon as practicable after the day specified under paragraph (2)(a).
18.As can be seen, the Registrar ‘must’ send a notice to a person who has failed to pay the celebrant registration charge by the charge payment day ‘unless’ the person’s liability to pay the charge may be affected by an internal review process relating to an application for exemption or any other circumstance. This discretion is essentially preconditioned by the existence of circumstances that may affect the person’s liability to pay the charge. If no such circumstances exist, the discretion to not send a notice of deregistration is not enlivened.
19.In the event that this discretion is not enlivened or it is not exercised, the provision directs the Registrar to send a notice to the person advising that he or she will be deregistered ‘after the day specified in the notice (being a day that is at least 7 days after the day on which the notice is sent)’. This is a mandatory consequence of non-payment by a person who is not exempt from liability to pay and who has been sent a proper notice. On this point, there is no discretion or latitude.
20.Even though the language of the provision in respect of the period of notice prior to deregistration is somewhat imprecise and ambiguous, deregistration occurs after the day specified in the notice. That day is to be at least seven days after the day on which the notice was sent.
21.A proper notice under s 39FB(1) must set out the information required by regulation 37JA –
(2)A notice to a person under subsection 39FB(1) of the Act must state that:
(a)the amount of celebrant registration charge that is payable:
(i)is a debt due by the person to the Commonwealth; and
(ii)may be recovered by action in a court of competent jurisdiction; and
(b)a person who is deregistered as a marriage celebrant may apply to the Administrative Appeals Tribunal for review of the Registrar of Marriage Celebrant’s decision to deregister the person.
Note:If the person wishes to become a marriage celebrant again, the person may reapply under section 39D.
22.As can be seen, if a person is deregistered as a marriage celebrant under s 39FB, there is no bar to the person making a fresh application under s 39D to be registered as a marriage celebrant again. In those circumstances, the person must satisfy the requirements for entitlement to be registered and pay the required fee.
Mr Thiel argued before Member Webb that the Registrar had discretionary powers that would allow him and the Registrar to take into account his failure to pay on the required date.
Member Webb disagreed.
In that regard, the Tribunal notes the decision of Member Webb when he writes at paragraphs 23-31 and 38-47 as follows:
Discretion
23.Mr Thiel says that the exception ‘unless’ to the direction ‘must’ in s 39FB indicates that there is a discretion that may be exercised to avoid deregistration that, otherwise, would be a mandatory consequence of non-payment of the celebrant registration charge within the notified time. This is plainly correct.
24.In Mr Thiel’s submission, the existence of this exemption suggests that the Marriage Act may be construed in a manner that allows for other kinds of exemption from the direction. He argues that the Marriage Act and the amending legislation that established the celebrant registration charge regime must be construed according to the intent of the Parliament, such that any defect of drafting is corrected. The imposition of mandatory deregistration of a marriage celebrant for non-payment of the charge is defective, so the argument goes, because the punitive sanction was intended to apply to marriage “celebrants who fail to complete their ongoing professional development”. Deregistration as a mandatory consequence of non-payment of a charge was not what the Parliament intended and, without flexibility to take account of particular circumstances, it is unreasonable and unfair. On this reasoning, Mr Thiel contends that the otherwise mandatory elements of s 39FB should be construed to allow discretion to take account of extenuating circumstances or, as I understand his submission, the discretionary element should be construed broadly to include circumstances that are not confined to those affecting liability alone.
25. I do not agree.
26.The words and provisions of Part IV of the Marriage Act are quite clear. So is the sanction for non-payment of the celebrant registration charge by a person who is liable to pay the charge before the end of a specified day. There is some ambiguity in the drafting of the notice requirement, to which I will return below. But this does not go to the point Mr Thiel has raised.
27.Mr Thiel refers to the Explanatory Memoranda in order to expose the intention of the Parliament in enacting the celebrant registration charge legislation. It can readily be accepted that by enacting the celebrant registration charge amendments the Parliament intended to impose a charging mechanism for celebrant registration that included punitive measures consequent upon non-payment of the charge. That much can readily be understood from the text of the legislation, as that is the purpose served by s 39FB.
28.The accepted rules of construction, and the cases to which Mr Thiel has referred in his submissions, do not allow words to be imported into the text to fill perceived gaps, or for the plain meaning of the language used to be strained tortuously to include a meaning that would not otherwise be open.
29.The real issue that Mr Thiel seeks to address is the lack of flexibility under the present legislation for the registrar, or the Tribunal, to take into account extenuating circumstances that lead to a person failing to pay the celebrant registration charge within the allotted time.
30.There is flexibility in the legislation as presently drafted for the Registrar to consider circumstances that bear on a person’s ‘liability’ to pay the celebrant registration charge when deciding whether or not to issue a notice under s 39FB(1).
31.Once the Registrar issues a notice, however, there is no further discretion or flexibility to take account of particular circumstances, on review.
…
38.As I have said, on 16 October 2014, the Registrar decided to send Mr Thiel a notice under s 39FB. It is not established that the Registrar had any knowledge of Mr Thiel’s circumstances at the time.
39.I must make the correct or preferable decision on the materials before me. It is quite clear that Mr Thiel was occupied by sudden, unavoidable and tragic family circumstances from 29 August 2014 until at least 22 September 2014, on which day he consulted family members and made decision as Executor of his parents’ estate.
40.Under the notice he was sent on 24 July 2014, he was due to pay the celebrant registration charge for which he was liable by 22 September 2014.
41.The circumstances Mr Thiel faced at the time did not affect his ‘liability’, strictly construed, to pay the celebrant registration charge.
42. On that basis, he cannot succeed.
43.If, however, the word ‘liability’ under s 39FA is read broadly for the purposes of s 39FB, circumstances that affect a person’s ability to meet the liability imposed under s 39FA(1) to pay the celebrant registration charge by the charge payment date may be relevantly taken into account when determining whether ‘the person’s liability may be affected by’ ‘any other circumstances of which the Registrar is aware’ for the purposes of s 39FB(1)(c).
44. Under a construction of that kind, Mr Thiel may be able to recover.
45.In the face of ambiguity of this kind, it is appropriate to refer to the Explanatory Memorandum to the Marriage Amendment (Celebrant Administration and Fees) Bill 2014, which provides in respect of s 39FB(1)(c) that –
Such other circumstance must affect the person’s liability to pay, rather than the timing of payment.
46.On that basis, it would appear that the intention is to adopt a strict interpretation of ‘liability’ that does not include latitude in respect to timing.
47. That being so, Mr Thiel cannot succeed.
In Written Submissions before this Tribunal dated 29 September 2015 in relation to the section 42B application, Mr Thiel appears to repeat much of what he said before Member Webb in mid-2015. Relevantly, as summarised by the Registrar in its Written Submissions in Reply dated 30 September 2015, Mr Thiel seeks to rely on a construction of the relevant provisions described in paragraphs 43-44 of Member Webb’s decision in relation to the word “liability”.
Specifically, it is noted that Mr Thiel’s Written Submissions before this Tribunal provide:
6.Further the Appellant submits that the Registrar has no power to re-issue an invalid de- registration notice when at the time of issuing the new notice, the charge had been paid and the OPD requirements were current.
7.In the decision of Member Webb at paragraph 43 he says: "If....the word 'liability' under s 39FA is read broadly for the purposes of s39FB circumstances that affect a person's ability to meet the liability imposed under s39FA(l) to pay the celebrant registration charge by the charge payment date may be relevantly taken into account when determining whether 'the persons liability may be affected by' 'any other circumstances of which the Registrar is aware' for the purposes of s 39FC(1)(C)'.
8.And he continues at 44 'Under a construction of that kind, Mr Thiel may be able to recover'.
9.It is the Appellants submission that the Registrar and the Tribunal should take a common sense approach to the Appellants case.
10.In Boiler Inspection and Insurance Co. of Canada, v. Sherwin-Williams Co. of Canada, 1951 AC 319, the expression "direct result" in an insurance policy did not imply that there could be no step between the cause and the consequence. The judgment of the Privy Council was delivered by Lord Porter who said at pages 333 and 334: "Whatever meaning the word "direct" may have in qualifying the word "result", it does not imply that there can be no step between the cause and the consequence." This goes directly to the point of the Appellant's late payment of the charge and the Registrar saying they "must" deregister the Appellant.
11.In Mihajlovic and Comcare [1999] AATA 339 the Tribunal found that: "beyond the concern to construe beneficial legislation generously, it must first construe the legislation in a manner which ensures that consistent results can be reached which accord with common sense and with the legislative purpose of the Act. These must be the primary concerns of the Tribunal in legislative interpretation."
12.In that case, the Tribunal applied the approach taken in Thiele v Commonwealth [1990] FCA 123 which was adopted in The Commission for Safety Rehabilitation Compensation of Commonwealth Employees v Ticsay [1992] FCA 468 and again applied in Whittaker v Comcare (FFC 98, No. 1099, 7/9/98). "That approach is that the legislative intent and purpose is to be the overriding consideration in determining the operation of the Act and the Guide."
13.It is under these circumstances the Appellant submits that his Review should not be dismissed, has reasonable prospect of success and therefore, should be heard and further submissions made in relation to the common sense approach and the reissue of the Notice (which we say the Registrar is not entitled to do).
As noted by the Respondent, what is not outlined by Mr Thiel above is that Member Webb proceeded to immediately reject this interpretation at paragraphs [45]-[47] of his decision and did so in light of the Explanatory Memorandum for the relevant legislation.
The Registrar contends that Member Webb was clearly correct to do so. This Tribunal agrees. The legislation is clear. Its intention is to adopt a strict interpretation of the word “liability” that does not include latitude of the sort required by Mr Thiel if he is to succeed before this Tribunal.
Mr Thiel’s contention is also directly contradicted by the plain language of the legislation statute. Relevantly, “liability” is explained in s 39FA(1) as follows:
A person is liable to pay celebrant registration charge to the Commonwealth in respect of a financial year if:
(a) the person:
(i) is a marriage celebrant on 1 July in that financial year; or
(ii)becomes a marriage celebrant later in that financial year; and
(b)the person has not, before the end of the charge payment day, been granted an exemption from liability to pay the charge.
The charge must be paid by the end of the charge payment day. [emphasis added]
Further, the suggestion that late payment of the fee can have a curative effect ignores the very plain statutory imperative in s 39FA(1) above, and also that in s 39FB(1), which reads:
If a person has not, by the end of the charge payment day, paid an amount of celebrant registration charge that the person is liable to pay, the Registrar of Marriage Celebrants must, as soon as practicable after that day, send the person a notice ...
The Tribunal finds that in relation to the facts specific to Mr Thiel, the Registrar was obliged by the legislation to re-issue the deregistration notice on remittal by the Tribunal. The Registrar had no choice but to do so. The legislation offers no discretion. No event that might be reviewed by this Tribunal occurred. It follows that the Tribunal’s hands are effectively tied on the facts before it.
That being so, Mr Thiel cannot succeed in his substantive application.
The Tribunal finds that this matter is one of those proceedings where the Tribunal can and should dismiss the application before it as being misconceived. As per Crompton v Victorian Workcover Authority (above at [19]), to allow these proceedings to continue “would be pointless” as the Tribunal simply cannot do what Mr Thiel asks it do. Further, his application has no reasonable prospect of success. The Tribunal has no discretion of the sort Mr Thiel would have it exercise to assist him. The legislation is clear in that regard and Mr Thiel simply cannot succeed.
The Tribunal feels considerable sympathy for Mr Thiel. The circumstances that resulted in him not complying with the registration requirements that govern him can only be described as unimaginably tragic. Unfortunately, the legislation in question offers him no remedy. On the evidence before it, nothing has occurred since the decision of Member Webb that would allow the Tribunal any greater flexibility or legal remedy that would assist Mr Thiel. The Tribunal cannot assist Mr Thiel, regardless of how sympathetic it is to the concerns he raises.
DECISION
The Registrar’s section 42B application is successful.
Mr Thiel’s stay application is denied.
The Tribunal dismisses Mr Thiel’s substantive application pursuant to section 42B of the AAT Act on the basis that the application is misconceived and has no reasonable prospect of success.
I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr Christopher Kendall. ...............[sgd D Brodie].........................................................
Administrative Assistant
Dated 12 November 2015
Date of hearing and oral decision
8 October 2015
Representative of the Applicant
Alyce Cooper
Solicitor for the Applicant
Herbert Weller Solicitor
Representative of the Respondent
Justin Davidson
Solicitor for the Respondent
Australian Government Solicitor
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