Wesley and Child Support Registrar (Child support)

[2020] AATA 4306

Wesley and Child Support Registrar (Child support) [2020] AATA 4306 (17 August 2020)

DIVISION:Social Services & Child Support Division

EXTENSION APPLICATION

NUMBER:2020/BC019556

APPLICANT:  Mr Wesley

OTHER PARTY:  Child Support Registrar

DATE DECISION MADE:                17 August 2020

APPLICATION:

An extension application made on 28 July 2020 asking the AAT to consider the application for AAT first review of a decision of the Child Support Registrar on 14 February 2020 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 – prejudice to other party – extension of time refused

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed 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 Wesley for an extension of time to apply to the Tribunal for review of a decision of the Child Support Agency (CSA) dated 14 February 2020 (notified to him by post). The CSA disallowed his objection to a “change of assessment” decision.

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 Wesley was required to make his application within 28 days of receiving the decision of 14 February 2020.

3. Mr Wesley made an application for AAT first review on 28 July 2020, well outside the 28-day period. In his written application to the Tribunal, Mr Wesley advised the following:

   …thankyou for allowing to explain my delay in appealing the C.S.A decision, to be honest when i received the first change of assessment notice i replied with my expenses and no change was made, when i received the second notification i objected and supplied my payslips and it was rejected, i was under the impression i had exhausted my options fully, shortly after this covid 19 was in full force and i had a reduction in work hrs and called csa for assistance who again reinforced that the current arrangement can not be amended for any reason and to continue making my normal payments. it was at this stage i decided to wait until my tax return had been completed to show further evidence that my income is less than the assessed amount.

   as soon as my tax was done i contacted C.S.A to ask again for my payments to be amended and the representative said i would need to contact yourselves as they had no control over the assessment

   I have honestly tried to do everything as requested and I understand I have not understood where in the appeal process I was in the beginning and time has lapsed, i am requesting leniency in regards to the lapsed time so my case can please be accessed and processed.

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 (Gallo v Dawson) as follows:

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

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

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

   ·the explanation for the delay;

   ·the merits of the substantial application;

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

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

Explanation for the delay

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

2. Mr Wesley was clearly advised in writing of his right to apply for review to the Tribunal within 28 days. He effectively elected to “rest on his rights”. He does not have a reasonable explanation for delay. This factor weighs heavily against granting an extension of time.

Merits of the objection

1. There is no purpose to be served by granting an extension if an application is not likely to succeed.

2. The nature of “change of assessment” decisions requires a decision maker to exercise a broad discretion. It could not be said an application, if permitted to proceed, would be devoid of merit.

10.The Tribunal observes that Mr Wesley is free to make a fresh application for a “change of assessment” if his circumstances have materially changed as a result of COVID-19, or other factors.  

Potential prejudice to the other party

11.The Tribunal is particularly concerned about the possible prejudice to the other party who has been entitled to rely upon the decision in the absence of a timely application for review by Mr Wesley.

Public interest considerations

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

Conclusion

13.Mr Wesley does not have a reasonable explanation for the delay. The Tribunal is particularly concerned about the possible prejudice to the other party, who has been entitled to rely, and budget upon, the original decision.

14.The Tribunal observes that Mr Wesley retains the option to apply to the CSA for a fresh change of assessment if there has been a material change.

15.The Tribunal considers the interests of justice require that the extension application be refused.