Administrative Appeals Tribunal of Australia|2010-05-20

DHLD and Executive Director, Social Security Appeals Tribunal [2010] AATA 377 (20 May 2010)

CATCHWORDS - CHILD SUPPORT LAW - EXTENSION OF TIME - factors that are relevant when considering an application for extension of time - time extended.

Administrative Decisions (Judicial Review) Act, s 11

Barrett v Minister for Immigration, Local Government and Ethnic Affairs [1989] FCA 269; (1989) 18 ALD 129

Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541; 139 ALR 1

Brown v Federal Commissioner of Taxation [1999] FCA 563; (1999) 99 ATC 4516; [1999] FCA 563; 42 ATR 118

Budd v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540

Chalk v Commissioner for Superannuation [1994] FCA 1063; (1994) 50 FCR 150; 33 ALD 420

Confidential and Executive Director of the Social Security Appeals Tribunal [2008] AATA 1006

Darwin Broadcasters Pty Ltd v Australian Broadcasting Tribunal (1990) 21 FCR 524

Dix v Client Compensation Tribunal [1993] VicRp 21; (1993) 1 VR 297

Doyle v Chief of Staff [1982] FCA 124; (1982) 42 ALR 283

Ex parte Toohey's Ltd; Re Butler (1934) 34 SR (NSW) 277

Forster v Jododex Australia Pty Ltd [1972] HCA 61; (1972) 127 CLR 421

Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344; 58 ALR 305; 7 ALD 315

Outboard Marine Australia Pty Ltd v Byrnes: Bauknecht (Third Party) [1974] 1 NSWLR 27

Phillips v Australian Girls' Choir Pty Ltd & Anor [2001] FMCA 109

Ralkon v Aboriginal Development Commission [1982] FCA 153; (1982) 43 ALR 535

Re Confidential and Social Security Appeals Tribunal [2008] AATA 1008; (2008) 106 ALD 613; 49 AAR 139

Re Gray; Ex parte Deputy Commissioner of Taxation [1993] FCA 277; (1993) 115 ALR 638

Re Mulheron and Australian Telecommunications Corporation (1991) 14 AAR 42

Repatriation Commission v Tuite [1992] FCA 415; (1992) 37 FCR 571

Roskell v Snelgrove [2008] FCA 427; (2008) 246 ALR 175

Sola Optical Australia Pty Ltd v Mills [1987] HCA 57; (1987) 163 CLR 628; 75 ALR 513

Wedesweiller v Cole [1983] FCA 94; (1983) 47 ALR 528

Windshuttle v Commissioner of Taxation [1993] FCA 553; (1993) 46 FCR 235; 93 ATC 4992; [1993] FCA 553; 27 ATR 88

DECISION AND REASONS FOR DECISION [2010] AATA 377

And: EXECUTIVE DIRECTOR, SOCIAL SECURITY APPEALS TRIBUNAL

set aside the decision of the respondent dated 29 January 2010; and
substitute a decision that the time within which the applicant may apply to the Social Security Appeals Tribunal for review of the decision made by the Child Support Registrar on 14 September 2009 be extended to 10 November 2009 when he made an oral application for review.

Publication of this decision is approved by the Administrative Appeals Tribunal under s 110X(4)(h) of the

DHLD had objected to an administrative assessment of child support by the Child Support Registrar (Registrar) under the Child Support (Assessment) Act 1989 (Assessment Act). His objection was considered but disallowed by a delegate of the Registrar on 14 September 2009.[1] A copy of the decision was sent to DHLD under cover of a letter also dated 14 September 2009.[2] At the time, DHLD was overseas for a three month holiday with his second wife and their two children. He did not receive the letter until he returned to Australia on 6 November 2009. He telephoned the Social Security Appeals Tribunal (SSAT) and, as he was entitled to do, made an oral application for review on 10 November 2009. In a letter dated 12 November 2009, the SSAT informed him that he was out of time and sent a copy of a blank extension application.[3] DHLD lodged the completed extension application on 18 November 2009. The SSAT decided not to extend the time in a decision dated 29 January 2010 and DHLD applied to this Tribunal for review of that decision.

2. At the conclusion of the hearing, I decided to set aside the SSAT's decision and to extend the time within which DHLD may lodge his application to 10 November 2009 when he made an oral application by telephone. By virtue of the operation of s 94(1)(b) and (c) and s 94(3) of the Child Support (Registration and Collection) Act 1988 (Registration and Collection Act), the effect of my decision will be that DHLD is deemed to have duly made an application to the SSAT for review of the Registrar's decision on 10 November 2009. I advised DHLD of my decision. As the SSAT was not represented and as the Registrar was not a party to the proceeding but is affected by it, I decided to give written reasons so that all may understand my reasons for extending the time within which DHLD could make an application for review.

3. For the purposes of this application, I find that DHLD and his former wife whom I will describe as Ms EW, are the parents of five children. Two of those children, who live with their father, are over the age of 18 years and so are no longer included in an administrative assessment. The middle child was aged 16 years at the time and lives with his father. The youngest two children live with their mother. The three youngest children are included in an administrative assessment.

4. For the period from 1 March 2009 to 31 May 2010, DHLD was initially assessed to pay an annual rate of child support of $470. The administrative assessment was based on DHLD's adjusted taxable income amounting to $21,198 and Ms EW's amounting to $13,995.

5. On 21 May 2009, Ms EW applied for an increase in the amount of child support that had been assessed. The decision of the delegate of the Registrar on objection referred to two reasons for her doing so: Reason 3 and Reason 8.[4] Reason 3 is said to be that Ms EW's costs of maintaining the children are significantly affected because the children are being cared for, educated or trained in the manner expected by the parents.[5] Reason 8 is that the administrative assessment is unfair because of the income, earning capacity, property or financial resources of one or both parents.[6] The Registrar decided that DHLD's adjusted taxable income was $28,923 and that, as a result, he was required to pay child support of $1,990 per year.[7]

6. DHLD objected to the decision and the grounds on which he did so are summarised in the decision on his objection:

"He left work on 8 June 2009 because there was not a lot of work around and there was a family emergency which requires him to be at home as a carer.

He is now on Centrelink benefits and cannot afford to pay the assessed rate.

In January 2009 he paid ... [EW] $70,000 as part of their property settlement.

He is required to pay her an additional $40,000 in four years.

... [DHLD] enclosed a copy of a letter from ... Neurosurgery Social Worker. That letter is dated 20 December 2008 and was written in support of ... [DHLD's] application for a Centrelink Carers Payment."[8]

7. Ms EW had not made a written response to the objection but, when contacted by the Child Support Agency (CSA), said:

"She thought there was no rush to respond because ... [DHLD] is on a three month overseas holiday.

... [A son] had an aneurysm last year. She spent much time by his side in hospital whilst ... [DHLD] was out working.

... [A son] is being cared for by his older brothers whilst ... [DHLD] is holidaying overseas.

She pays ... [that son's] school fees because ... [DHLD] refuses to."[9]

8. In reviewing the decision as a result of the objection, a delegate of the Registrar decided that the cost of the three children's school fees was considerably higher than the cost of government schooling and that Ms EW was having difficulties meeting them. Until a year before, DHLD had contributed to those fees. It was the intention of both parents that the youngest three children be educated at a particular private school attended earlier by their eldest two children. That satisfied Reason 3.

9. The delegate of the Registrar also decided that reason 8 had been established. He found that he had been a self-employed taxi driver working on a lease arrangement but had stopped working because not much work was available to him and he was required to care for his son. DHLD has received a Carer's Payment since 1 February 2009. He had stopped working on 9 June 2009 and had not actively sought work. The delegate found that DHLD had not indicated that he had any health issues of his own that prevented him from working. His role in his son's care was not essential as he was being cared for by DHLD's eldest two sons while he, DHLD, was overseas for three months. The delegate found that DHLD had not rebutted a presumption that his ceasing work was substantially motivated by the effect it would have on the administrative assessment of the child support he must pay. As a result of his consideration, he considered that reason 8 had not been satisfied and he could make the administrative assessment having regard to DHLD's earning capacity. He set DHLD's income at $28,923 on the basis of his capacity to earn income as a taxi driver.

10. The delegate found that DHLD had no capacity to pay the school fees and so did not alter the administrative assessment on that basis. Having assessed the amount of DHLD's earning capacity to be the same as that reached in the initial administrative assessment, he disallowed the objection.

11. When the SSAT considered DHLD's extension application, it did so on the basis that his application for review was 21 days out of time. It set out the principles on which it would decide the application:

"16. In making this decision, the Tribunal considered the guiding principles for the exercise of a discretion to allow an extension of time as set out in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344. In that case the Federal Court said that an extension of time should not be granted unless it was proper to do so, noting that in general, applications or proceedings commenced outside of a prescribed time limit will not be considered. The Court also said that there must be an acceptable explanation for the delay and that it must be fair and equitable in the circumstances to extend time.

In Re Mulheron and Australian Telecommunications Corporation (1991) 14 AAR 42 O'Connor J outlined some principles to be applied in considering an application for an extension of time.

'The principles to be applied in considering an application for

(i) prima facie proceedings commenced outside the prescribed period will not be entertained. An extension of time will be granted, however, if it is proper to do so;

(ii) it is relevant whether the applicant rested on his [or her] rights or took action to make the decision maker aware that the decision was being contested;

(iii) any prejudice to the respondent that would be caused by granting the extension of time is relevant;

(iv) any wider prejudice to the general public in terms of disruption to established practice is relevant;

(v) the merits of the substantial application are relevant; and

(vi) fairness of granting an extension of time as between the applicant and other persons in like position is relevant.'

In Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541, the High Court in dealing with an extension of time and the general concept of time limitation periods, noted that while an extension of time is the exception to the general rule, there are legislative provisions which in the circumstances of the facts of a particular case, may indicate that justice is served by the general rule being overturned.
More recently, in Confidential and Executive Director of the Social Security Appeals Tribunal [2008] AATA 1006 (7 November 2008), the Administrative Appeals Tribunal noted the Full Court of the Federal Court's decision in Comcare v A'Hearn [1993] FCA 498; (1993) 119 ALR 85 and in particular, that the Court decided that there is no rule or requirement that there must be an acceptable reason for delay.
Considering the above authorities of various Courts and Tribunals in relation to the determination of extension of time matters, the Tribunal is of the view that in deciding whether or not to grant an extension of time to object, it should consider and balance a number of factors and principles including those raised by Justice O'Connor in Re Mulheron and Australian communications Corporation."[10]

12. The SSAT accepted that DHLD had returned to Australia on 6 November 2009 from a three month trip overseas. With regard to the management of his affairs while he was overseas, it found:

"22. He said his adult son ... (22 years old) received his letters while he was away but he did not tell his father about this letter. His son is studying civil engineering at university. His cousin paid his bills while he was away. He said he did not know about the time limit and he personally did not read English well.

The Tribunal accepts he was overseas in the stated period and that he made specific arrangements for handling his mail and his bills, while he was away. However, it was his objection to the Agency that was determined in his absence and the Tribunal considers it very unlikely that ... [DHLD] did not obtain information from his son ... regarding the correspondence and the decision of the Agency. His own evidence was that he arranged for his eldest son to receive his correspondence while he was overseas.
The Tribunal does not accept that he was unaware of the time limit and considers he could have lodged his appeal within time. However, the Tribunal notes that his delay was for 21 days and he lodged his appeal very shortly after he returned to Australia.
The Tribunal considers that the [sic] ... [DHLD] did rest on his rights but not for a long period."[11]

13. The SSAT proceeded to consider the merits of the substantial application if time were extended and it were permitted to be made for review of the decision on objection. I will take only its consideration of DHLD's earning capacity as an example. The SSAT recited the events regarding the health of one of their sons,

DHLD's continuing to work as a taxi driver for six months after one of their sons had suffered an aneurism and he had begun to receive Carer Payment in December 2008, his continuing to receive Carer Payment from December 2009 and his care for his second wife and their two children. It concluded:

"40. The Tribunal notes that ... [DHLD] is not working, despite apparently ample opportunity to obtain work as a driver. His decision to ceasse work does not appear to be justified by his health or his caring responsibilities. It appears that he would not be able to satisfy the onus regarding his motivations for stopping work.

The Tribunal does not make findings about these matters but cannot discern any merit in an appeal against the decision to base his child support on a modest income that has historical validity based on his previously declared income as a taxi driver."[12]

LEGAL FRAMEWORK AGAINST WHICH APPLICATION CONSIDERED

14. Child support is regulated by the Assessment Act and the Registration and Collection Act. The long title to the Assessment Act states that it is "An Act to make provision for determining the financial support payable by parents for their children, and for other purposes". Among the objects that the legislation seeks to achieve are those of ensuring that the level of financial support to be provided by parents for their children is determined according to their capacity to provide that support, that parents with a like capacity to provide financial support provide like amounts, that the level of financial support provided is determined in accordance with legislatively fixed standards and that persons who provide ongoing daily care for children should be able to have the level of financial support readily determined without the need to resort to court proceedings.[13]

15. Detailed provision is made for determination of matters such as the child support period[14] and those children who are eligible children and so children to whom the Assessment Act applies.[15] Provision is also made regarding those who may apply for an administrative assessment of child support, those children in relation to whom an administrative assessment may be made and how they are made.[16] The Registrar has to determine whether an application for an administrative assessment complies with the legislative requirements[17] and, if satisfied that it does so, has to accept the application.[18] If not satisfied, the Registrar may refuse it.[19] If the Registrar accepts an application then, in summary, child support is payable by the liable parent to the carer entitled to child support. Child support is payable in relation to the days beginning on the day the application is made and ending on the day before the day on which a child support terminating event happens.[20]

16. The Registrar has to assess the annual rate of the child support payable by the liable parent to the carer entitled to child support for the child if an application for that assessment is properly made.[21] Part 4A of the Assessment Act sets out the circumstances in which the Registrar has to make an administrative assessment. The formulae that the Registrar is required to use in making that assessment are set out in Part 5 of the Assessment Act. Part 5 also directs the Registrar in the way in which the assessment is to be made.

This Part includes the formulas used for assessing the annual rate of child support payable by a parent for a child for a day in a child support period (other than in cases where that rate is worked out in accordance with a child support agreement, a Registrar's determination under Part 6A or a court order).
The Costs of the Children Table published by the Secretary each year (based on the table in Schedule 1 to this Act) sets out the costs to parents of raising children in various age ranges.
Those costs are to be met by both parents (by paying child support or by caring for their children) according to each parent's capacity to meet the costs.
To determine each parent's capacity to meet those costs, the parents are assessed in respect of the costs of the child.
Generally, both parents' income is taken into account in determining each parent's capacity to meet the costs of their children.
The formulas also allow child support payable to non-parent carers of children to be worked out."

18. Division 2 of Part 5 sets out the formulae used by the Registrar in making an administrative assessment of the annual rate of child support payable by a parent for a child for a day in a child support period (other than in cases where that rate is worked out in accordance with a child support agreement, a Registrar's determination under Part 6A or a court order). Section 35B sets out:

"... a simplified outline of this Division [2 of Part 5]:

The Costs of the Children Table published by the Secretary each year (based on the table in Schedule 1 to this Act) sets out the costs to parents of raising children in various age ranges.
These costs are to be met by both parents (by paying child support or by caring for their children) according to each parent's capacity to meet the costs.
To determine each parent's capacity to meet the costs, the parents are assessed in respect of the costs of the child.
Formulas 1 and 2 apply if both parents' incomes are taken into account in determining each parent's capacity to meet the costs of their children, and each parent only has one child support case.
Formulas 3 and 4 apply if both parents' incomes are taken into account in determining each parent's capacity to meet the costs of their children, and at least one of the parents has multiple child support cases.
Formulas 5 and 6 apply if only one parent's income is taken into account in determining the parent's capacity to meet the costs of his or her children (such as because the other parent is not a resident of Australia).
Formulas 2, 4, 5 and 6 also allow child support payable to non-parent carers of children to be worked out."

Remaining provisions of Part 5 elaborate on various aspects of the formulae and their application.

19. Once the Registrar has made an assessment, there may be a departure from it but only in accordance with Part 6A. Section 98A sets out a simplified outline of the provisions of the Part:

"• The Registrar can make a determination under this Part to depart from the provisions of this Act relating to administrative assessment of child support for a child.

A liable parent or a carer entitled to child support can apply for such a determination, or the Registrar can make a determination on his or her own initiative.
The Registrar must not make a determination in respect of a day that is more than 18 months earlier without leave of a court under section 112.
The grounds for deciding whether to make a determination are the same as a court uses in deciding whether to make an order under Division 4 of Part 7.
If the Registrar is considering making a determination, the parties can make a child support agreement in relation to child support payable for the child instead of the Registrar making the determination.
Under section 80 of the Registration and Collection Act, certain persons can object to a decision to make or refuse to make a determination under this Part."

20. When an administrative assessment is in force in relation to a child, the liable parent concerned is a person who may ask the Registrar to make a determination under Part 6A. In order to apply, the liable parent must be of the view that, because of special circumstances that exist, there should be a departure from the provisions of the Assessment Act.[22] Once an application is made under s 98B,[23] the Registrar must decide if satisfied:

"(i) that one, or more than one, of the grounds for departure referred to in subsection (2) exists; and

(A) just and equitable as regards the child, the liable parent, and the carer entitled to child support; and

to make a particular determination under this Part;

Once satisfied of these matters, "the Registrar may make the determination."[25]

21. For the purposes of s 98C(1)(b)(i), the grounds for departure are those set out in s 117(2).[26] Section 117 sets out the grounds on which a court may make an order departing from the provisions of the Assessment Act relating to administrative assessment of child support for a child. Those grounds are:

(2) For the purposes of subparagraph (1)(b)(i), the grounds for departure are as follows:

(a) that, in the special circumstances of the case, the capacity of either parent to provide financial support for the child is significantly reduced because of:

(i) the duty of the parent to maintain any other child or another person; or

(ii) special needs of any other child or another person that the parent has a duty to maintain; or

(iii) commitments of the parent necessary to enable the parent to support:

(B) any other child or another person that the parent has a duty to maintain; or

(iv) high costs involved in enabling a parent to spend time with, or communicate with, any other child or another person that the parent has a duty to maintain;

(aa) that, in the special circumstances of the case, the capacity of either parent to provide financial support for the child is significantly reduced because of the responsibility of the parent to maintain a resident child of the parent (see subsection (10));

(b) that, in the special circumstances of the case, the costs of maintaining the child are significantly affected:

(i) because of high costs involved in enabling a parent to spend time with, or communicate with, the child; or

(ib) because of high child care costs in relation to the child; or

(ii) because the child is being cared for, educated or trained in the manner that was expected by his or her parents;

(c) that, in the special circumstances of the case, application in relation to the child of the provisions of this Act relating to administrative assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the child:

(i) because of the income, earning capacity, property and financial resources of the child; or

(ia) because of the income, property and financial resources of either parent; or

(ib) because of the earning capacity of either parent; or

(ii) because of any payments, and any transfer or settlement of property, made or to be made (whether under this Act, the Family Law Act 1975 or otherwise) by the liable parent to the child, to the carer entitled to child support or to any other person for the benefit of the child."

22. Sections 117(2B) and (3C) qualify some of the grounds set out in

s 117(2). Section 98C(2) does not refer to each of those qualifications in relation to the Registrar's powers under that section. Instead, s 98C refers to only six qualifications. The first three are referred to in s 98C(2)(b). Each relates to the ground specified in s 117(2)(b)(ib). It provides:

"subparagraph 117(2)(b)(ib) has effect subject to subsections 117(3A) to (3C)."

Each of sub sections 117(3A) to (3C) relates to the ground of high child care costs in relation to a child. The remaining six qualifications are referred to in s 98(3) which provides:

"Subsections 117(4) to (9) inclusive apply to the Registrar in the exercise of his or her powers under this Division as if:

(a) any reference in those subsections to the court were a reference to the Registrar; and

(b) any reference to an order were a reference to a determination."

Section 117(4) relates to the matters to which regard must be had in making a determination whether it would be just and equitable to make the order. Section 117(5) relates to the matters to which regard must had in determining whether it would otherwise be proper to make a particular order in departing from the administrative decision. The proper needs of the child are the subject of s 117(6).

23. Section 117(7) sets out the matters to which the court must have regard in having regard to the income, earning capacity, property and financial resources of the child and s 117(7A) sets out the matters to which the court must have regard in having regard to the income, earning capacity, property and financial resources of a parent of the child. It provides:

"(7A) In having regard to the income, property and financial resources of a parent of the child, the court must:

(a) have regard to the capacity of the parent to derive income, including any assets of, under the control of, or held for the benefit of, the parent that do not produce, but are capable of producing, income; and

(i) the income, earning capacity, property and financial resources of any person who does not have a duty to maintain the child, or who has such a duty but is not a party to the proceeding, unless, in the special circumstances of the case, the court considers that it is appropriate to have regard to them; and

(ii) any entitlement of the child or the carer entitled to child support to an income tested pension, allowance or benefit."

Section 117(7B) elaborates upon the earning capacity of a parent of the child:

"(7B) In having regard to the earning capacity of a parent of the child, the court may determine that the parent's earning capacity is greater than is reflected in his or her income for the purposes of this Act only if the court is satisfied that:

(i) the parent does not work despite ample opportunity to do so;

(ii) the parent has reduced the number of hours per week of his or her employment or other work below the normal number of hours per week that constitutes full-time work for the occupation or industry in which the parent is employed or otherwise engaged;

(iii) the parent has changed his or her occupation, industry or working pattern; and

(b) the parent's decision not to work, to reduce the number of hours, or to change his or her occupation, industry or working pattern, is not justified on the basis of:

(c) the parent has not demonstrated that it was not a major purpose of that decision to affect the administrative assessment of child support in relation to the child."

24. Section 117(8) provides that the court must have regard to the income and earning capacity foregone by the carer entitled to child support in providing that care when it is considering the direct and indirect costs incurred by the carer entitled to child support. Finally, ss 117(4) to (8) do not limit the matters to which the court may have regard. That is the effect of s 117(9).

25. Under s 98E, the Registrar may refuse to make a determination and recommend that the application be made to a court when satisfied that the application is too complex to be dealt with under Part 6A of the Assessment Act. The Registrar may refuse to make the determination without taking any further action under Part 6A if satisfied that there are no grounds for departing from the provisions of the Assessment Act relating to the administrative assessment of child support or that it would not be just or equitable or otherwise proper to make the determination.[27]

26. If the Registrar decides that neither ss 98E nor 98F applies, he or she must cause a copy of the application and any document accompanying it to be served on the other party to the proceedings.[28] He or she must give the other party a notice that he or she may make any representation, known as a reply, regarding the application.[29] The Registrar must serve a copy of the reply and any accompanying document on the applicant.[30] If the applicant or the other party wish to appear before the Registrar, the Registrar must give them, or either of them as the case may be, an opportunity to appear and be heard.[31]

Review of administrative assessment by way of objection

27. The Registration and Collection Act sets out the way in which certain persons are able to object to certain decisions made under it and under the Assessment Act. Part VII provides for internal reconsideration of the Registrar's decisions.

A person specified in the Table in s 80(1) of the Registration and Collection Act may object to a decision specified in that Table. Sections 80(2) to (5) qualify the right to lodge an objection given by s 80(1). A decision to make or to refuse to make a determination under Part 6A of the Assessment Act is a decision specified in the Table and the liable parent is one of the persons specified as a person who may object to that decision.[32]

28. The remaining provisions of Part VII regulate the manner in which an objection is made and a decision reached upon it. I will refer only to ss 85 and 87. Section 85(1) requires the Registrar to serve copies of objections and accompanying documents on certain persons. Those persons are ascertained by reference to the table set out in s 85(1). The table identifies them by reference to the decision that has been objected to. When the decision objected to is a decision that more than one person could have objected to under s 80, the Registrar must service a copy of the objection and any accompanying document on each other person who could have objected to the decision.[33]

"Subsection (1) does not apply to an objection to a decision to make, or refuse to make, a departure determination under Part 6A of the Assessment Act if the Registrar is satisfied that the rights of the person who would otherwise be served with a copy of the objection and any accompanying documents will not be affected by any possible decision the Registrar could make in relation to the objection."

30. Section 87 requires the Registrar to consider the objection and to either disallow the objection or to allow it in whole or in part.[34] Time limits are imposed according to where the person objecting or a person served with the objection resides.[35] The Registrar must "serve notice in writing of the decision" on the person who lodged the objection and "each other person who was entitled to be served a copy of the objection and the accompanying documents under section 85."[36]

Review by the SSAT of the Registrar's decision on the objection

31. Part VIIA of the Registration and Collection Act provides for review of certain decisions by the SSAT. In so far as the Registrar's decision on an objection is concerned, item 2 of the table in s 89(1) provides that the person who objected to the original decision under s 80 and a person who was entitled to be served with a copy of the objection and any accompanying documents under s 85 may apply for review. The right created by s 89(1) is, however, qualified by s 89(2). The qualifications do not apply in this case.

32. An application for review under Part VIIA is made either by sending or delivering a written application to an office of the SSAT, the Department, Centrelink or an office of the Department administering the Commonwealth Services Delivery Agency Act 1997,[37] or by making an oral application at an office of the SSAT or to an office of the SSAT over the telephone.[38] If a person makes an oral application, the person receiving it must make a written record of the details of the oral application and note the day on which it was made.[39] That written record has effect as if it were a written application made on the day on which the oral application was made.[40] The application may contain reasons for making it.[41]

33. The parties to the review under Part VIIA are the applicant, the Registrar, any other person who was entitled to apply for review of the decision under s 89 and any other person made a party under s 101(4).[42] Subject to certain qualifications in ss 97 and 98, the Registrar must give each party to the review a copy of the statement setting out the Registrar's decision and reasons and any document in the possession of the Registrar and relevant to the review.[43]

34. The time within which a person must apply to the SSAT for review is set out in s 90 of the Registration and Collection Act. Provided the person is not a resident of a reciprocating jurisdiction,[44] the application must be made:

"... within the period of 28 days starting on the day on which the relevant notice under subsection ... 87(2) is served on the person".[45]

35. If the period for applying for review under Part VIIA has ended:

"a person may make an application for review under this Part that includes a written application (the extension application_) asking the SSAT Executive Director to consider the application for review despite the ending of the period._"[46]

The extension application must state the reasons for the person's failure to apply for the review within the period required by s 90.[47]

36. The SSAT Executive Director must make a decision on the application and give written notice of that decision to the person who made the extension application.[48] If the decision is to grant the extension application, the effect is that the person is deemed to have duly made the application for review under Part VIIA to which the extension application relates.[49] A person whose extension application has been refused may apply to the Tribunal for review of that refusal decision.[50]

37. In considering the manner in which the discretion to grant an extension should be exercised, regard is frequently paid to the principles set out by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen[51] (Hunter Valley). In that case Wilcox J considered an application for extension of time pursuant to s 11 of the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) rather than s 29 of the AAT Act. After noting that s 11 does not set out any criteria to be followed in exercising the Court's discretion and that there had been a number of decisions of judges of the Federal Court all sitting at first instance, he distilled six factors that are relevant in deciding to exercise the discretion. The first factor[52] was modified by the Full Court of the Federal Court in Comcare v A'Hearn.[53] Allowing for that modification, the factors were summarised by Federal Magistrate McInnis, as he then was, in Phillips v Australian Girls' Choir Pty Ltd & Anor[54] when he said:

" In the light of A'Hearn's case, it is clear that at least one of the principles referred to by Wilcox J in the Hunter Valley decision needs to be modified namely that it should not be any longer regarded as law that the inexcusable delay on the part of a solicitor should be visited upon the client and nor should it be a principle that there is in fact a pre-condition to the exercise of discretion in favour of the applicant for extension to show an acceptable explanation for delay or that it's fair and equitable in the circumstances to extend time. In the light of the decision in Ahearn's [sic] case it is useful to set out in modified form the relevant principles in relation to the exercise of the Court's discretion when considering an extension of time in a human rights application based upon those principles distilled by Wilcox J in Hunter Valley as follows:

_There is no onus of proof upon an applicant for extension of time though an application has to be made. Special circumstances need not be shown, but the court will not grant the application unless positively satisfied it is proper to do so. The 'prescribed period' of 28 days is not to be ignored (_Ralkon v Aboriginal Development Commission [1982] FCA 153; (1982) 43 ALR 535 at 550).
It is a prima facie _rule that the proceedings commenced outside the prescribed period will not be entertained (_Lucic v Nolan (1982)

_45 ALR 411 at 416). It is not a pre-condition for success in an application for extension of time that an acceptable explanation for delay must be given. It is to be expected that such an explanation will normally be given as a relevant matter to be considered, even though there is no rule that such an explanation is an essential pre-condition (_Comcare v A'Hearn [1993] FCA 498; (1993) 45 FCR 441 and Dix v Client Compensation Tribunal [1993] VicRp 21; (1993) 1 VR 297 at 302). 3. Action taken by the applicant other than by making an application to the court is relevant in assessing the adequacy of the explanation for the delay. It is relevant to consider whether the applicant has rested on his rights and whether the respondent was entitled to regard the claim as being finalised. (See Doyle v Chief of Staff [1982] FCA 124; (1982) 42 ALR 283 at 287). 4. Any prejudice to the respondent, including any prejudice in defending the proceeding occasioned by the delay, is a material factor militating against the grant of an extension. (See Doyle at p 287). 5. The mere absence of prejudice is not enough to justify the grant of an extension. (See Lucic at p 416). 6. The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted. (See Lucic at p 417). 7. _Considerations of fairness as between the applicant and other persons otherwise in a like position are relevant to the manner of exercise of the court's discretion (_Wedesweiller v Cole (1983) 47 ALR 528)."[55]

38. Cowdroy J approved and applied these factors in the context of

s 44(2A)(a) of the AAT Act.[56] They are, however, not factors that are applied rigidly for it is apparent from other judgments of the Federal Court that they are factors or principles that must be shaped by reference to the legislative context in which the power is given. The legislative context in which they were developed by Wilcox J in Hunter Valley was that of the ADJR Act. They were modified by the Full Court of the Federal Court in A'Hearn in the context of the extension of time provisions in

s 29(7) of the AAT Act. It may be that in a particular context the principles remain the same but it may be that they do not. That this is so is clear from the observations made by Hill J in Brown v Federal Commissioner of Taxation.[57]

39. By way of illustration, I note that the formulation of the power to extend time may affect the principles. The way in which it is formulated in s 11(1) of the ADJR Act, with which Wilcox J was concerned, differs from the way in which it is formulated in s 29(7) of the AAT Act. Whereas s 11(1) gives the court power to extend the time for lodgement "within such further time as the court concerned ... allows", s 29(7) provides that the Tribunal may extend the time if it "is satisfied that it is reasonable in all the circumstances to do so." Section 2A provides that:

"In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick."

40. The apparent strengths or weaknesses of any applicant's case are the subject of factor 6 in McInnis FM's summary in Phillips v Australian Girls' Choir Pty Ltd & Anor and were included by Wilcox J in the Hunter Valley case in his list. The particular application for an extension of time will be relevant in deciding how those strengths and weaknesses are "properly to be taken into account". An application for an extension of time for lodging an objection under the now repealed

s 188A of the Income Tax Assessment Act 1936,[58] for example, might have led to a view of what might properly have been taken into account that is different from the view of what may properly be taken into account if the application were made under

s 29(7) of the AAT Act. The authorities may adopt what appear to be slightly different approaches although their ultimate conclusions are consistent i.e. a consideration of the merits of the substantive or substantial application does not translate into a requirement to undertake a full consideration of the merits of a substantive application were time extended and it were to be lodged.

41. Von Doussa J explained their relevance of issues relating to the merits of the substantial application in Windshuttle v Commissioner of Taxation.[59] His

"The issue which the AAT was required to consider was whether, for the purposes of the exercise of the discretion under s 188A [of the Income Tax Assessment Act 1936], the applicant's case had prospects of success, and what those prospects were. It is sufficient for that purpose, if the parties chose to so argue their case, to merely identify the factual assertions which the applicant made in the objection, and then to consider whether the application of the law to those assertions would bring about the result for which the applicant contends. In other words the assertions can, if the parties so choose, be treated as pleadings are treated where an application is made to strike out an action on the ground that the pleadings disclose no cause of action. On an application of that kind the true existence of the facts alleged in the pleadings is not explored by evidence. That is left for the trial if there is an arguable case on the pleadings. It would, of course, have been open before the AAT for the Commissioner to attack the history of the transaction asserted by the applicant. If it could have been demonstrated that an essential part of that history was wrong, that would go directly to the prospects of success to the objection. However the Commissioner chose not to attach [sic] the veracity of the facts alleged by the applicant, and this is understandable having regard to judicial pronouncements to the effect that where the issue is whether leave should be given to extend time it is inappropriate for the tribunal concerned to embark on a full scale trial of the merits of the underlying question which will be agitated only if time is extended. See Barrett v Minister for Immigration, Local Government and Ethnic Affairs [1989] FCA 269; (1989) 18 ALD 129 at 130, Repatriation Commission v Tuite [1992] FCA 415; (1992) 37 FCR 571 at 577. It would not be appropriate on an application to extend time to seek to attack the facts alleged on the ground that the credit of the applicant, or that of supporting witnesses, should not be accepted. Arguments of that kind are best left for later consideration if and when an extension of time is granted. Only where there is some obvious and easily demonstrated flaw in the applicant's case would it be appropriate to challenge the factual basis for the asserted claim on an application to extend time."[60]

In the later case of Brown v Federal Commissioner of Taxation, Hill J commented upon the relevance of particular principles set out in the Hunter Valley case to an application for an extension of time under the Taxation Administration Act 1953. The taxpayer had sought an extension of time within which to lodge an objection from an assessment but the Commissioner of Taxation (Commissioner) had refused it. The Tribunal affirmed the Commissioner's decision and the taxpayer appealed to the Federal Court. Against that background, Hill J said:

"... there is much to be said for the view that the merits of the objection are of less concern when an application for an extension of time to object is under consideration than would be the case where judicial review of an administrative decision is sought. For it is only after the objection is lodged within the time which is extended that the Commissioner is placed under a duty to consider the objection and allow or disallow it or allow it in part. I do not wish to be taken as saying that the merits of the objection are totally irrelevant. For present purposes I am prepared to accept the view of von Doussa J in Windshuttle [v Deputy Federal Commissioner of Taxation (1993) 93 ATC 4992] that an applicant should show that he or she has an arguable case. No doubt if the objection on the face of it is one which is frivolous or bound to fail as a matter of law it would be a futility to permit an extension of time to enable it to be considered. But this points to quite a low threshold. What is involved is whether the objection on its face discloses a case which is arguable, not whether having regard to other matters, including evidence which may not even be known to the taxpayer at the time of making the application, the case is one that the taxpayer will or will probably lose."[61]

43. While his Honour's comments were noted on appeal, the Full Court made no particular observation other than to clarify the Tribunal's power to have regard to the apparent strengths and weaknesses of the taxpayer's case.[62] It said:

" We wish to make it clear, however, that the AAT is not precluded from taking into account the apparent strength or weakness of taxpayer's case, when determining whether an extension of time should be granted, if the overall circumstances are such that the apparent strength or weakness of that case is properly to be regarded as a material consideration. In the present case, for example, while the AAT should not have resolved the application by rejecting the taxpayer's evidence as unworthy of belief, it could have taken into account the obvious difficulties confronting the taxpayer's claim when deciding whether, in the light of all the circumstances, an extension of time was appropriate. The AAT might well have concluded that, having regard to the taxpayer's delay in lodging the application, the fact that he had been prepared at one stage to accept that the assessed amount was income and the contemporaneous documentary evidence casting doubt upon his claims, the case did not warrant an extension of time. But this is not the basis on which the AAT chose to proceed."[63]

44. The spirit in which an application for an extension should be approached is a matter that Davies J, with whom Black CJ agreed, considered in Chalk v Commissioner for Superannuation.[64] He said:

" Most provisions which authorise an extension of time are instances of beneficial legislation which, accordingly, should be applied beneficially. With respect to such discretions in rules of court, Reynolds, Hutley and Bowen JJA said, in Outboard Marine Australia Pty Ltd v Byrnes: Bauknecht (Third Party) [1974] 1 NSWLR 27 at 30:

'We appreciate that the rules of court, particularly those relating to time, should never be allowed to be an instrument of tyranny. They do, however, have purposes, one of which is that the parties may know where they stand and regulate their affairs accordingly. It is also appreciated that where genuine issues ought to be litigated, if such can be done with fairness to all concerned, it is appropriate to take a benign view of applications to extend time.'

Those remarks indicate the importance of forming a view as to whether it is in the interests of justice that time be extended..."[65]

45. Similar sentiments were expressed by McHugh J in the High Court in Brisbane South Regional Health Authority v Taylor:[66]

"Even where the cause of action relates to personal injuries ..., it will be often just as unfair to make the shareholders, ratepayers or taxpayers of today ultimately liable for a wrong of the distant past, as it is to refuse a plaintiff the right to reinstate a spent action arising from that wrong. The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible ...

In enacting limitation periods, legislatures have regard to all these rationales. A limitation period should not be seen therefore as an arbitrary cut-off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. Against this background, I do not see any warrant for treating provisions that provide for an extension of time for commencing an action as having a standing equal to or greater than those provisions that enact limitation periods. A limitation provision is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case. The purpose of a provision such as s 31 is 'to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced.' [[67]] But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action. The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension."[68]

The power to extend time: the SSAT Executive Director's power

46. Unlike the power given to this Tribunal by s 29(7) of the AAT Act, the power given to the SSAT Executive Director by s 92 is not predicated upon his or her being satisfied that it is reasonable in all the circumstances to extend the time for making the application. Like s 11(1) of the ADJR Act, it is not expressed to be dependent upon his or her being satisfied of anything. Despite that, it is inherent in the power that is given that the SSAT Executive Director must consider that it is appropriate to exercise the power to grant or refuse the extension application. The person making the extension application does not carry an onus of proof.

47. Unlike s 11(1), s 92(2) requires the person making the extension application to give reasons for failing to make the application within time. Therefore, those reasons must be relevant in considering an application made under s 91 of the Registration and Collection Act just as they are relevant in considering an application under s 14ZW(2) of the Taxation Administration Act 1953 for an extension of time. Although s 14ZW(2) does not expressly stipulate matters that are to be taken into account, Hill J held in Brown v Commissioner of Taxation that the requirement in

s 14ZW(3) that the taxpayer's application state fully and in detail the circumstances concerning and the reasons for the failure to lodge the objection in time make it clear that these matters are clearly relevant.[69]

48. To this extent then, factor 2 in the list set out by McInnis FM in Phillips v Australian Girls' Choir Pty Ltd & Anor must be modified. Reasons for the delay must be given and regard must be had to them. That does not mean that it is a pre-condition for success in an application for extension of time that the reasons that must be given must themselves compel an extension of time. They are part of the mix factors of factors to which regard must be had.

49. Of relevance will be the actions the person has taken in letting the decision-maker know that he or she wishes to challenge the decision. That is factor 3 in the list. In Hunter Valley and in Phillips v Australian Girls' Choir Pty Ltd & Anor, those affected by the decision were respondents to the proceedings. In this case, there is another person who is potentially affected by it and that is the carer entitled to child support under the administrative assessment. That is Ms EW, who was entitled to apply for review of the decision on the objection under s 89(1) because she was a person who was entitled to be served with a copy of the objection under s 85. Under

s 101(1)(c), she would become a party to the review if the extension of time were granted.

50. The extent to which a person such as Ms EW has been made aware may also be of relevance. I say "may" because I am aware that the Registration and Collection Act makes no provision for the carer entitled to child support to be made aware of the extension application. That is to be contrasted with the provision made in s 85(1), which requires the Registrar to serve a copy of an objection made under s 80 on any other person who could have objected to the decision concerned.

It is to be contrasted with s 96(1), which requires the Registrar to give a copy of the decision and other relevant documents to parties to the review once an application for review has been lodged in the SSAT.

51. The omission of service requirements in relation to the extension application suggests that the extent to which a person other than the Registrar knows that the applicant does not consider the matter at an end is of less consequence than the extent to which the Registrar knows of it.

52. That takes me to any prejudice that might be suffered by the Registrar in defending the proceeding and that has been occasioned by the delay. For the reasons I have just given, consideration may need to be given to the person entitled to child support but regard must certainly be had to the position of the Registrar. If delay means that the Registrar, and perhaps any other person who would be a party if time were extended and the application made, would be prejudiced in producing relevant material relating to the merits of the decision under review, that would militate against extending the time. That is factor 4 in the list in Phillips v Australian Girls' Choir Pty Ltd & Anor. That there is no prejudice does not automatically lead to a favourable outcome of the extension application. That is factor 5.

53. Factor 6 relates to the merits of the application were the extension application to be granted. I have dealt with this already at [29] - [32] above and note that it is not the occasion on which to embark upon a detailed consideration of the evidence and the merits. The question that must be asked is whether the applicant on the extension application has an arguable case. If, at a substantive hearing, that applicant were able to produce evidence to establish the facts he or she puts forward on the extension application, would he or she have an arguable case having regard to the facts put forward and the law against which those facts must be considered?

54. The final factor is factor 7 which raises considerations of fairness as between the applicant for the extension application and other persons in a like position.

55. DHLD's application was received by the SSAT on 18 November 2009 but the first question that I must ask myself relates to when notice of the Registrar's decision was served on DHLD. That question must be answered so that I know the extent to which DHLD's extension application is beyond the time permitted under s 90 for making an application to the SSAT for review of the decision. The time permitted is the period of 28 days starting on the day on which notice of the decision was served on DHLD under s 87(2).

56. What the Registrar did was to advise DHLD of the decision by writing him a letter dated 14 September 2009. On the basis that DHLD received that letter in his hands some time after he returned to his home from overseas in the early hours of 7 November 2009, I accept that the Registrar posted that letter. His flight from overseas had arrived a bit over an hour before midnight on 6 November 2009. That, however, does not answer the question when notice of the decision was served upon him.

57. The word "serve" is not defined in the Registration and Collection Act but, in so far as it is relevant in this case, s 28A of the Acts Interpretation Act 1901 (AI Act) provides that:

"(1) For the purposes of any Act that requires or permits a document to be served on a person, whether the expression 'serve', 'give' or 'send' or any other expression is used, then, unless the contrary intention appears, the document may be served:

(ii) by leaving it at, or by sending it by pre-paid post to, the address of the place of residence or business of the person last known to the person serving the document; ...

(a) affects the operation of any other law of the Commonwealth, or any law of a State or Territory, that authorizes the service of a document otherwise than as provided in that subsection; or

(b) affects the power of a court to authorize service of a document otherwise than as provided in that subsection."

58. There is nothing in the Registration and Collection Act that affects the operation of s 28A(1) of the AI Act. Therefore, service of the notice of the Registrar's decision on DHLD's objection can be effected by sending it by pre-paid post to him. I find that this is the manner in which it was served on him for he received it in the mail on his return from overseas.

59. The day on which he received it is not necessarily and, in this case, is unlikely to be the date on which it was served on him. If this were a proceeding in a federal court, I would turn to ss 160 and 163 of the Evidence Act 1995 (Evidence Act). Section 160 provides:

"(1) It is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) that a postal article sent by prepaid post addressed to a person at a specified address in Australia or in an external Territory was received at that address on the fourth working day after having been posted.

(b) all the parties to the proceeding are parties to the contract; and

(c) subsection (1) is inconsistent with a term of the contract.

(b) a public holiday or a bank holiday in the place to which the postal article was addressed."

60. Section 163 provides:

"(1) A letter from a Commonwealth agency addressed to a person at a specified address is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) to have been sent by prepaid post to that address on the fifth business day after the date (if any) that, because of its placement on the letter or otherwise, purports to be the date on which the letter was prepared.

(b) a public holiday or bank holiday in the place in which the letter was prepared.

letter means any form of written communication that is directed to a particular person or address, and includes:

(a) any standard postal article within the meaning of the Australian Postal Corporation Act 1989; and

DHLD and Executive Director, Social Security Appeals Tribunal [2010] AATA 377 (20 May 2010)

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DHLD and Executive Director, Social Security Appeals Tribunal [2010] AATA 377 (20 May 2010)

Legislation Cited (11)

Cases Cited (16)