Urquhart and Urquhart and Anor (SSAT Appeal) - [2011] FMCAfam 1453

FEDERAL MAGISTRATES COURT OF AUSTRALIA

URQUHART & URQUHART & ANOR (SSAT APPEAL)

[2011] FMCAfam 1453

CHILD SUPPORT – Remitted back to the Social Security Appeals Tribunal.

Child Support (Registration and Collection) Act1988, ss.87A, 88, 101, 103E.
Federal Magistrates Court Rules2001, r.7.03.

Simon v Social Security Appeals Tribunal [2011] FMCA 857
Manchester & Manchester and Ors (SSAT Appeal) [2011] FMCAfam 1215

Applicant:

MR URQUHART

First Respondent:

MS URQUHART

Second Respondent:

CHILD SUPPORT REGISTRAR

File Number:

BRC10000 of 2008

Judgment of:

Coates FM

Hearing date:

25 November 2011

Date of Last Submission:

25 November 2011

Delivered at:

Brisbane

Delivered on:

25 November 2011

REPRESENTATION

Counsel for the Applicant:

Mr Shoebridge

Solicitors for the Applicant:

Christine Vachon Solicitor

Solicitors for the First Respondent:

Self represented

Solicitors for the Second Respondent:

DLA Piper Australia

THE COURT ORDERS ON A FINAL BASIS:

That the Applicant be granted leave to amend the Notice of Appeal (Child Support) filed on 20 June 2011 (“the appeal”) by the addition of grounds 12 and 13.
That the appeal be allowed and in relation to the Application for Review of a Child Support Assessment filed by the Application with the Social Security Appeals Tribunal (“the SSAT”) on 24 January 2011 (“the review”) and dealt with by the SSAT on 17 May 2011:
(a)the decision by SSAT made on 17 May 2011 to hear the review in the absence of the Applicant is hereby set aside; and
(b)the decision of the SSAT made on 17 May 2011 that for the period from 1 July 2010 to 30 November 2010, the Applicant’s annual adjusted taxable income is set at $139,259.00 is hereby set aside; and
(c)the decision of the SSAT made on 17 May 2011 that for the period 1 December 2010 to 29 February 2012 the Applicant’s annual adjusted taxable income is set at $184,599.42 and the Respondent’s annual adjusted taxable income is set at $27,457.00 is hereby set aside.
That the review is remitted to the SSAT for a hearing and determination according to law.
That the mother’s Amended Response filed on 22 June 2011, to the extent that it constitutes a cross application relating to enforcement of child support arrears, is stayed pending the delivery of a decision by the SSAT in relation to the review.
That the child support amount payable by the father to the mother be stayed pending determination of the matter.

THE COURT FURTHER ORDERS:

That the parenting and property proceedings be adjourned for Mention at 9.30 am on 21 March 2012 in the Federal Magistrates Court of Australia at Brisbane.

IT IS NOTED that publication of this judgment under the pseudonym Urquhart & Urquhart & Anor (SSAT Appeal) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRC 10000 of 2008

MR URQUHART

Applicant

And

MS URQUHART

First Respondent

CHILD SUPPORT REGISTRAR

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

A.These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

On 23 May 2011, a decision by the Social Security Appeals Tribunal in case number DC9347, between the parties Ms Urquhart and

Mr Urquhart and the Child Support Registrar, was dispatched to the parties.
The decision was that the Tribunal set aside a decision then under review and substituted its own decision, and so much is stated on the material before the Court in a copy of the decision and the reasons. The decision and the reasons are attached to a notice of appeal filed by

Mr Urquhart on 20 June 2011.
The appeal document, as it must do, states the grounds for appeal, in that the Tribunal made certain errors of law and the grounds are stated in paragraphs 1 to 11.
Briefly, the grounds are, in summary form, the Social Security Appeals Tribunal, known as the SSAT, did not afford procedural fairness to the father when, during the hearing on 17 May, it did not telephone him, and the SSAT gave reasons so insufficient as to amount to no reasons at all, and that the SSAT misinformed itself in relation to the effect of a number of transactions referred to in banking statements.
The respondent, Ms Urquhart, filed an amended response on 20 June. [She relied on this response for the appeal.]
In that amended response, she seeks a reopening of the parenting matters for two children, [Y], born [in] 2000, and [X], born [in] 1999. Those matters are not before me today.
She [also] seeks that the father, Mr Urquhart, pay or cause to be paid to her child support in the amount set out as per the Social Security Appeals Tribunal decision which was dispatched on 23 May, and she gives a schedule for the first payment to be made, that the arrears of child support accrued through the Child Support Agency be paid in one lump sum, and all legal costs and incidentals to the proceedings be paid by Mr Urquhart, and what then appears to be a re-opening of the property proceedings, because her draft order 11 states that:
“The shares in [T] that is currently held in both names be sold, and moneys and previous dividends be divided equally between both parties.”
When I say appears to be a re-opening of the property matters, I am not at all certain of what the status of any property decision has been in relation to [T] shares, but in any case, it is fairly evident to me that that is not part of this hearing today. She is not represented, so I really take it that she seeks that the father’s appeal be dismissed, and that I go ahead and make, I suppose, other decisions in relation to disputes over Child Support.
The Child Support Registrar is represented, and makes no submission one way or another on the grounds of appeal [unless I allow the amendments which were foreshadowed].
When the matter came before me this morning, which is 25 November 2011, Mr Shoebridge of counsel for the appellant advised that he sought to amend the appeal, and, subject to my decision of course, I allowed him to file by leave the amendments, and they are [contained in] in a single document entitled Amendments to Notice of Appeal, and I will read the amendments into the record. So they actually carry on from the original notice:
“12. The Social Security Appeals Tribunal erred at law when constituted as the Tribunal it decided to proceed to hear the review application without oral submissions from the applicant contrary to the requirements of section 103E of the Child Support (Registration Collection) Act 1988, and it obtained authority from the Principal Member.
13. The decision of the SSAT to proceed in the absence of the applicant without the power to do so rendered the decision of the SSAT dated 23 May 2011 void ad initio.”
If I accept those amendments – that is, if I grant leave, then the submission of Ms Nixon, counsel for the Registrar, is that by consent, the Registrar would seek that the matter be returned to the SSAT.
The first respondent, that is, the mother Ms Urquhart – and I hope I say it correctly – I am sorry if I do not – is not represented, and I have attempted to give her all of the assistance necessary so that I can understand her case. I have done that by posing questions. I have done that by attempting to reduce to plain language concepts of law.
I have had Mr Shoebridge, in discrete submissions, explain to the Court just how his client’s case is structured, and again, I have attempted to put into plain language for Ms Urquhart the issues so that she could explain to me her case, so that I can understand her case. I have kept in mind that she is not represented. I have kept in mind that she is not a lawyer. There is nothing to suggest that she has any legal qualification whatsoever, and I have attempted to explain the issues at law which I am trying to grapple with here.
One of the starting points was really – what are my powers in relation to amendments? Mr Shoebridge took me to Part 7 of the Federal Magistrates Court Rules2001, and the rules there state that “at any stage in the proceeding the court may allow or direct a party to amend a document, other than an affidavit, in the way and on conditions the Court or registrar thinks fit” and that “may allow for an amendment even if the effect would be to include a cause of action arising after the proceeding started.”
What I have to consider, really, is that r.7.03, which applies to general federal law matters, as well as I would think family law matters, the considerations which any Court would take into account. The Court may give leave to make an amendment, even if their effect was a new cause of action, if the Court considers it appropriate and the new cause of action arises out of the same or substantially the same facts as a cause of action for which relief was already claimed. In a sense, what has been raised in the amended grounds, I suppose, could be viewed as a new cause of action. Really they are just new grounds which have been put before the Court, but there is no doubt that what has been raised are genuine grounds and are real issues of public policy, because what is alleged to have occurred is that the SSAT made a decision for which it had no authority. For which it was not empowered to do.
I am satisfied that I have given the first respondent, Ms Urquhart, every opportunity to put before me everything, with every argument, every submission she put – in relation to the amendments. I am also satisfied that she is not really in a position, I think, to grasp the legal aspects of what was being put to me, and that can be understood because she is a not a lawyer, she has no training in law, and that is why I have taken time in order to tease out from her aspects of any submission which she could make to me which would have a bearing on my decision, and I think, with all due respect to Ms Urquhart, that I persevered with that, keeping in mind that I cannot run her case for her, because then I have to run the appellant’s case as well.
I suppose the closest that Ms Urquhart came to, in her submissions, that the SSAT made a decision it could do so is when she produced to me e-mail correspondence from the SSAT which I have marked exhibit 1. That can only be understood if the argument here, the factual argument is understood, and I will address that very briefly. What had occurred is this. When the SSAT heard this matter the appellant did not appear. The SSAT, as the Tribunal, refers in its decision to attempting to contact the appellant. In simple terms, it could not do so, and said so. It decided as the Tribunal to press ahead, in other words, it decided to exclude him, or in terms under the Child Support (Registration and Collection) Act1988, remove him from the proceeding.
The appellant supplies evidence to this hearing that he was ill on the day, and later on the day – sorry, not only was he ill, that he mistook the date that he was supposed to attend – not only that, he says that when he realised it was not at a later time, I think at about 11 am but that does not really matter, he contacted by telephone the SSAT and he said words to the effect that he was told the SSAT hearing was underway and that he would be contacted if there was any issue that needed to be put to him.
He also produces a medical certificate that he was suffering an illness on that day, and that he would not have been fit or in a fit condition really, to be giving his attention to the hearing. Now, even though that certificate was obtained later, there is no way in my view that

Ms Urquhart can contradict or challenge the medical certificate, even though she said she would want to challenge it. I do not think there is any way which she can, especially since she is not represented. Her view of the medical certificate is one thing, but the fact is before me is a medical certificate and it says what it says – that on the day the father was suffering from illness and he just could not participate or participate adequately in the hearing – and it is really on that ground that the grounds of his appeal are based, that he was denied procedural fairness, and that particularly, in relation to the amendments, he was denied the opportunity of giving oral submissions.
The real issue here is did the Tribunal have the power to make a decision to proceed and it is clearly the case from the reasons [that it did], without either hearing from the appellant or excluding him? Section 87A of the Child Support (Registration and Collection) Act1988 – I am sorry – gives a simplified outline of the Part, and in that simplified outline it says the SSAT must pursue the objective of providing a mechanism of review that is fair, just, economical, informal, and quick. That it may be economical, informal, and quick does not remove the requirements of fairness and justice and this is what this appeal is based on, that a denial of such is an error of law.
In s.88, the Tribunal is required by these words to carry out its functions, and the section says:
“88. In carrying out its functions under this Act, the SSAT must pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.”
So in fact, s.88 puts into statutory form what is in note form at s.87A. So there is no doubt about the objects of the Tribunal, and how it must function. Section 101, which is quite a long section, deals with parties to reviews. Section 101(5) says this:
“s.101(5) SSAT Principal Member may remove parties: The SSAT Principal Member may direct that a party to a review no longer be a party to the review if:
(a) the party consents; or
(b) the SSAT Principal Member is satisfied
(i) after having communicated with the party; or
(ii) after having made reasonable attempts to communicate with the party and having failed to do so;
that the party does not intend to participate in or proceed with the review; or
(c) the party fails to comply with a direction or order of the SSAT or of the SSAT Principal Member given in relation to the review; or
(d) the party fails to attend the hearing.”
Acting as the Tribunal, the reasons state that the Tribunal decided to go ahead without the appellant, and they had the consent of Ms Urquhart for that, but I do not know if they needed her consent. In any case, that is what they did, and that is what they say. The Tribunal is not a Principal Member. The amendments to the appeal came, I was told in submission, because of two cases delivered since the appeal notice was filed. They are in order, Simon v Social Security Appeals Tribunal [2011] FMCA 857 and Manchester & Manchester and Ors (SSAT Appeal) [2011] FMCAfam 1215.
I should have been more specific, I said they were made after an appeal was filed, but perhaps I should have said became available after the appeal was filed. In the Simon case – and this is a principle of law which I spent time in trying to get submissions from Ms Urquhart upon, Jarrett FM said at paragraph 11:
“It is clear that the SSAT constituted by direction from the Principal Member for the purposes of a particular review is conceptually a different entity to the Principal Member, even though the SSAT consists of, amongst others, the Principal Member (clause 1(a) of Schedule 3 of the Social Security (Administration Act) 1999).”
Is it said [submitted] that the Tribunal did not have the power to exclude the appellant here from the SSAT hearing, and this is bringing up, again, this issue of public policy. In Manchester & Manchester, Halligan FM, in a very detailed judgment, made this decision, from paragraph 75:
“75. In my view, Part VIIA of the Registration Act draws a clear distinction between the Principal Member and the SSAT in conferring various powers and functions in relation to an application for review.”
76. The clear distinction drawn in Part VIIA between the Principal Member and the SSAT and the failure to mention decisions of both in s.110B must be for a reason, and in my view that reason is that it was not intended to create any right of appeal to a court on a question of law under s.110B from a decision of the Principal Member in relation to a review.
77. In my view, the structure of the Administration Act and the Registration Act makes clear that a reference to the Principal Member cannot be synonymous with a reference to the SSAT. The Principal Member may only constitute the SSAT for a review if subject to a direction in writing by himself or herself under Clause 10, Schedule 3 of the Administration Act. But when so directed, the Principal Member is indistinguishable from any Senior Member, Assistant Senior Member or other member subject to a written direction under Clause 10. That is, a member or members of the SSAT, including the Principal Member, directed to constitute the SSAT for a review is or are the SSAT for that review, but not otherwise, and their decisions are decisions of the SSAT only when so constituted.”
What is not apparent here on the face of the decision is that the principle member authorised, or made decision that the appellant was removed as a party for the purposes of the decision-making process, the decision being dispatched on 23 May 2011. Ms Urquhart produced to me e-mail correspondence regarding this very point.
RECORDED : NOT TRANSCRIBED [Submissions regarding s.103E]
This case, as such, is not about the removal of the appellant as such; it is, though, about the decision taken by the Tribunal to exclude him from giving his oral decisions [evidence] under s.103E of the Child Support (Registration and Collection) Act1988, but it is clear from the wording of the Act that the Principal Member and the Tribunal, although they can be one, clearly have to be seen to be the one decision-maker, and that is why Halligan FM in Manchester & Manchester took the time to explain how it is that a Principal Member can take on the role as the decision-maker as the Tribunal.
Section 103E of the Act expresses in similar terms the decision-making process when a decision is made about a party who cannot be contacted – clearly, the Act states that is a decision of a Principal Member. It does not state that it [the decision is] the act of the Tribunal and the decision itself says “the Tribunal took this decision in response …”
Ms Urquhart referred me to e-mail correspondence that she has received, and that is exhibit 1, and it is dated Wednesday, 23 November, 2011, at 11:11 am.
Now she has this e-mail correspondence because she was put on notice that there was going to be an amendment, and she was put on notice so that she could prepare to respond. Someone by the name of Mr L has sent Ms Urquhart this message, and I will quote it:
“Dear Ms Urquhart
The Senior Member asked me to advise that relevant powers under subsections 103E(2) and 103E(3) of the Registration and Collection Act were delegated to the presiding member of the SSAT so that the presiding member was empowered to make the decision for the SSAT to proceed without hearing from

Mr Urquhart.”
And that is in response to Ms Urquhart’s request to find out what happened at the hearing.
Federal Magistrate Halligan sets out in Manchester & Manchester how that delegation is achieved. There is an issue of public policy here, as there must be. Tribunals, and this Tribunal, are set up to make decisions in a fair, just, economical, informal, and quick framework, because that is the wording in the Act. It is not set up, and can not make any decision outside of its legislative framework. To do so must raise the question that an error of law has occurred. The public policy behind that is that people using the Tribunal know, and are assured, that the decision-making process of the Tribunal, even though it is an administrative decision, has been done according to law.

It is on that basis that I will allow the appeal to be amended, allowing of course then, that the grounds set out, numbered 12 and 13 come before me and that my decision then be made on the submissions which have been put before me. I am going to stress this again, as best I could I attempted to allow Ms Urquhart in as plain a use of the language as I could, opportunity to submit to me firstly, why I should not allow the appeal in, and secondly, if I do, why the matter should not be remitted. There is consent for it to be remitted, as I said, as between the appellant and the Registrar on the grounds that there are issues of public policy, and that [is that] a Tribunal should only be making decisions in the manner it is constituted to do so.
And that must be so, otherwise people could never be sure of the grounds of a decision. The Tribunal must be making these decisions only in the manner that the Act allows it to do so.
Ms Urquhart did put to me certain submissions as to why I would not be remitting the matter back going to those specific amendments, unfortunately, they were just not in a form which was either persuasive, or, in fact, a form which I could consider. That there is an e-mail to the effect that the Tribunal had been delegated certain powers under s.103E of the Child Support (Registration and Collection) Act1988, is, in my view, irrelevant. What must be apparent in all these decisions is that the Tribunal exercises the power it can lawfully exercise, and no other power, and that a Principal Member exercise a power which a Principal Member can exercise, and no other power. If a Principal Member delegates, then as Halligan FM said in Manchester & Manchester, there is a procedure for doing that, and in my view that must be apparent on the face of the decision. I will draw a parallel, whenever the Full Court of the Family Court exercises the appeal powers by a single judge, always there is a reference to how that power is being exercised, and that must be the same, and especially so with an administrative tribunal, simply because errors of fact do not necessarily amount to an error of law. If a Tribunal exercises its power according to law, then the legitimacy of those decisions cannot be called into question. There must be always the ability to see that the Tribunal has exercised the powers given to it, and exercised them clearly in accordance with law, that is, the Act it operates under, and of course, the administrative law which has been developed.
On that basis, I am going to remit the matter, because in my view an error of law has been achieved in this matter. As to the other grounds, I am only going to briefly address those. Ms Urquhart did address these other grounds in her outline. I am going to say this, I do not need to make a decision on those other issues. It is clear that [not hearing from] a person who is sick and not able to attend a hearing may be a decision which does not involve an error of law, and Ms Urquhart pointed to a case. Now, it may [also] be a case that upon disclosure of financial documents they are in such a manner that a Tribunal cannot understand them [and such does not involve an error of law], and

Ms Urquhart pointed to a case going to that type of decision-making, but she was unable to put before me the factual background as to how the courts came to that decision-making, allowing decisions of the Tribunal to stand.
What is apparent to me, and it is a matter I raised, was that if a person is sick, as the father was according to the doctor’s certificate, and he was denied the opportunity of explaining his financial details, how is it that that very possibly does not amount to an error of law? This simple denial in the circumstances – and that is what is important – it is the denial of a procedure on the factual circumstances which would amount to a denial of procedural fairness, which is important. So merely referring to cases is not how it is done, and I say this with all due respect to Ms Urquhart. It is really putting into context the factual context as to how the decision-making process was arrived at.
There were other grounds of appeal, as I have stated. There is no need, in my view, now to refer to those, simply because I think a fundamental error has occurred here, and that is that the decision of the Tribunal was void ad initio. I will adopt the draft orders which have been handed to me and stay any application in relation to the draft orders in relation to child support arrears. The appellant, who will become the respondent, will have to apply in the normal way to the parenting orders, and allow those steps to be taken regarding the attendance at Relationships Australia to proceed.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Coates FM.

Date: 22 December 2011