FEDERAL COURT OF AUSTRALIA

Tydeman v Deputy Registrar of Child Support Agency [1999] FCA 936

PRACTICE AND PROCEDURE – application for extension of time to file appeal against decision of a Judge of this Court – Federal Court Rules, O 52, r 15(2) – whether the applicant’s grounds of appeal are arguable

Child Support (Assessment) Act 1989 (Cth), Part 6A; ss 98A, 98C, 98EA

Administrative Decisions (Judicial Review) Act 1977 (Cth), s 6(1); Sch 1, par s

Federal Court of Australia Act 1976 (Cth), s 25(2)(b)

Federal Court Rules, O 52, r 15(2)

Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543, cited

Jess v Scott (1986) 12 FCR 187, applied

CATHERINE ALEXIS TYDEMAN v DEPUTY REGISTRAR OF CHILD SUPPORT AGENCY

N 619 OF 1999

JUDGE:          SACKVILLE J

DATE:            9 JULY 1999

PLACE:          SYDNEY

THE COURT ORDERS THAT:

1.         An extension of time until 23 July 1999 be granted for the applicant to file and serve a notice of appeal from the judgment of Katz J given on 12 February 1999.

2.         The notice of appeal name as respondent the Child Support Registrar, in lieu of the Deputy Registrar of Child Support Agency.

3.         The costs of the application be costs in the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This is an application pursuant to Federal Court Rules (“FCR”), O 52, r 15(2) for an extension of time within which to file and serve an appeal against a decision of Katz J, given on 12 February 1999.   His Honour dismissed as incompetent an application to review certain conduct engaged in by or on behalf of the Child Support Registrar (“Registrar”) under the Child Support (Assessment) Act 1989 (Cth) (“Child Support Act”).

2                     As Katz J noted, the respondent to the proceedings was designated as the “Deputy Registrar of Child Support Agency”.  His Honour pointed out that the respondent should have been the Registrar, but that no point had been taken by reason of the misnomer.  The application for an extension of time contains the same defect but, again, nothing turns on it for present purposes, although an amendment should be made if a notice of appeal is to be filed.

3                     An application for an extension of time may be heard and determined by a single Judge or a Full Court: Federal Court of Australia Act 1976 (Cth), s 25(2)(b).  The application involves an exercise of the appellate jurisdiction of the Court: Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543 (FC), at 548.  Both parties were content for me to determine the application, rather than to have it referred to a Full Court.

4                     The application for an extension of time was filed on 23 June 1999, some four months out of time.  The applicant, who appeared in person, read an affidavit which provided an explanation for at least the major part of the delay in challenging the decision of Katz J.  Mr McCulloch, who appeared for the Registrar, did not dispute the factual accuracy of the explanation.

5                     The principles to be applied in determining whether to grant an extension of time for the filing of an appeal were laid down in Jess v Scott (1986) 12 FCR 187 (FC).  Having regard to the explanation for the delay, the most important consideration in the present case, although not necessarily the only one, is whether the applicant’s grounds of appeal are arguable.  If they are not, the grant of an extension of time would be futile.

6                     The proceedings ultimately determined by Katz J were commenced on 8 September 1998.  The applicant sought review of a decision made by the Registrar on 27 January 1993, over five years earlier.  In an amended application, filed on 23 October 1998, she sought review of the Registrar’s conduct in reaching the decision of 27 January 1993.  Her application was made pursuant to s 6(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“ADJR Act”).  Section 6(1) of the ADJR Act provides as follows:

“Where a person has engaged ... in conduct for the purpose of making a decision to which this Act applies, a person who is aggrieved by the conduct may apply to the Court for an order of review in respect of the conduct on any one or more [of nine specified grounds]”.

The decision (as it was called) of 27 January 1993 was made pursuant to s 98C of the Child Support Act.  The decision was expressed in the following terms:

“1.       There be a departure from the administrative assessment of child support. 

2.         For the period 1 February 1993 to 30 June 1993 Mr Tydeman is to pay child support at the annual rate of $6,240.”

7                     The decision went on to provide for slightly higher rates of child support after 30 June 1993.  When the matter came before Katz J, the Registrar moved for dismissal of the amended application as incompetent.  The Registrar relied on par (s) of schedule 1 to the ADJR Act.  Schedule 1 specifies “CLASSES OF DECISIONS THAT ARE NOT DECISIONS TO WHICH THIS ACT APPLIES”.  Paragraph (s) is as follows:

“determinations made by the Child Support Registrar under Part 6A of the Child Support (Assessment) Act 1989.”

8                     Katz J upheld the Registrar’s argument.  His Honour accepted, in substance, that the only decisions that could be made under Part 6A of the Child Support Act were determinations of the kind referred to in par (s). 

9                     It is neither necessary nor appropriate to analyse too closely the grounds of appeal on an application to extend the time for filing an appeal.  It is enough to observe that it is at least arguable that Part 6A of the Child Support Act provides for the Registrar to make decisions that cannot accurately be described as “determinations made by the Child Support Registrar under Part 6A”.  In particular, a refusal by the Registrar to make a determination departing from an administrative assessment may not itself be a determination in the relevant sense: see ss 98A, 98EA.  It follows that “determinations” made under Part 6A of the Child Support Act may not be co-extensive with “decisions” made under that Part.

10                  Of course, assuming this construction of Part 6A of the Child Support Act is correct, it may not assist the applicant.  It appears to be clear enough that the decision made on 27 January 1993 was a “determination” made under Part 6A, since it directed a departure from the administrative assessment of the required level of child support (see s 98A).  Therefore, it may well be the case that the conduct complained of by the applicant is properly to be described as conduct engaged in for the purpose of the Registrar making a determination under Part 6A of the Child Support Act.   If so, Katz J’s conclusion was correct.

11                  I think that considerable difficulties remain in the applicant’s path.  Nonetheless, having regard to the matters raised in par [9], I think that the appeal should be regarded raising arguable issues.  Since the applicant has provided an adequate explanation for her delay in challenging the decision of Katz J, I think that an extension of time for the filing of an appeal should be granted.  I have not overlooked the fact that the applicant says that she does wish to challenge the amounts specified in the decision of 27 January 1993, but rather intends to attack the findings on which the decision was based.  The fact that her objectives are limited is not of itself a ground for denying her the opportunity to contend that her application to this Court seeking review of the Registrar’s decision was competent.

12                  Accordingly, I extend the time for the applicant to file and serve a notice of appeal from the judgment of Katz J given on 12 February 1999, until 23 July 1999.  I direct that the notice of appeal should name the Child Support Registrar as the respondent.  The costs of the application should be costs in the appeal.

Associate:

Dated:              9 July 1999