FEDERAL COURT OF AUSTRALIA Manchester v MacDonnell [2012] FCA 841 Citation: Manchester v MacDonnell [2012] FCA 841 Appeal from: Federal Magistrates Court of Australia Parties: MR MANCHESTER v JANE MACDONNELL, SUE ELLEN BULLOCK, SOCIAL SECURITY APPEALS TRIBUNAL, MS MANCHESTER and COMMONWEALTH OF AUSTRALIA File number: NSD 160 of 2012 Judge: GRIFFITHS J Date of judgment: 10 August 2012 Catchwords: ADMINISTRATIVE LAW – decision by SSAT Principal Member to remove appellant as a party to SSAT proceedings – decision by SSAT Senior Member to consequently dismiss appellant's application to SSAT – whether Senior Member failed to take into account prejudice to the appellant – whether Federal Magistrate failed to consider the effect of the removal decision on the appellant's substantive rights – whether the Federal Magistrate erred in not finding that the Principal Member improperly exercised discretion under s 101(5)(c) of the Child Support (Registration & Collection) Act 1988 (Cth) Legislation: Child Support (Registration & Collection) Act 1988 (Cth) ss 88, 100, 101, 103K, 103N, 103ZA Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5 Cases cited: Lenijamar Pty Ltd v AGC (Advances) Limited (1990) 27 FCR 388 Date of hearing: 6 August 2012 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 58 Counsel for the Appellant: Mr G A Laughton SC Solicitor for the Appellant: Maclarens Lawyers Counsel for the First Respondent: The First Respondent submitted save as to costs Counsel for the Second Respondent: The Second Respondent submitted save as to costs Counsel for the Third Respondent: The Third Respondent submitted save as to costs Counsel for the Fourth Respondent: The Fourth Respondent submitted save as to costs Solicitor for the Fifth Respondent: Mr A Markus of Australian Government Solicitor IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 160 of 2012 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: MR MANCHESTER Appellant AND: JANE MACDONNELL First Respondent SUE ELLEN BULLOCK Second Respondent SOCIAL SECURITY APPEALS TRIBUNAL Third Respondent MS MANCHESTER Fourth Respondent COMMONWEALTH OF AUSTRALIA Fifth Respondent JUDGE: GRIFFITHS J DATE OF ORDER: 10 August 2012 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal is dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 160 of 2012 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: MR MANCHESTER Appellant AND: JANE MACDONNELL First Respondent SUE ELLEN BULLOCK Second Respondent SOCIAL SECURITY APPEALS TRIBUNAL Third Respondent MS MANCHESTER Fourth Respondent COMMONWEALTH OF AUSTRALIA Fifth Respondent JUDGE: GRIFFITHS J DATE: 10 August 2012 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The appellant appeals against orders made by Halligan FM in proceedings in the Federal Magistrates Court involving a judicial review of two decisions made by members of the Social Security Appeals Tribunal (SSAT). Those decisions are, first, a decision by the Principal Member of the SSAT (the first respondent in the appeal) to remove the appellant as a party to SSAT proceedings. The second and subsequent decision was made by a Senior Member of the SSAT (the second respondent), acting as delegate of the Principal Member. The second decision comprised a determination that the appellant's application for review before the SSAT be dismissed. That application for review concerned a decision dated 23 May 2008 by a delegate of the Child Support Registrar (the Registrar) to increase the amount of child support payable by Mr Manchester to his ex-wife in respect of their four children. Mr Manchester's ex-wife is the fourth respondent in the appeal. I should also record at this point that pseudonyms have been used having regard to the combined operation of s 121 of the Family Law Act 1975 (Cth) and s 105 of the Child Support (Registration & Collection) Act 1988 (Cth) (the Act). 2 In the appeal proceedings before me, submitting appearances (save as to costs) were filed by the first, second and third respondents (respectively, the Principal Member of the SSAT, the Senior Member of the SSAT who acted as delegate of the Principal Member in dismissing the proceedings in the SSAT, and the SSAT itself). A submitting appearance (save as to costs) was also filed by the fourth respondent (Ms Manchester) who, as noted above, is the appellant's ex-wife. Ms Manchester was a respondent in the proceedings in both the SSAT and in the Federal Magistrates Court (as will emerge below, there were in fact two separate proceedings in the Federal Magistrates Court). Ms Manchester appeared and was represented by a solicitor in the proceedings before Halligan FM and filed submissions in support of the decisions the subject of Mr Manchester's judicial review challenge. 3 In the proceedings before Halligan FM, the Commonwealth intervened on a limited basis to make submissions on two legal issues, namely the source and nature of the power to give the directions which led to the decision to remove the appellant as a party to the SSAT proceedings and the nature and extent of procedural fairness obligations. The Commonwealth is also named as a fifth respondent in the appeal before me. In the absence of any other active contradictor, the Commonwealth appeared and prepared written submissions for the assistance of the Court on various issues. The Commonwealth made clear, however, that it did not propose to be a full contradictor and submitted that there should be no order as to costs against it whatever the outcome. The Court has been greatly assisted by the Commonwealth's participation in the appeal. 4 I propose to structure these reasons as follows: summarise the relevant legislative background; summarise the relevant factual background; outline the Principal Member's reasons for her decision to remove the appellant as a party to the SSAT review; outline Halligan FM's reasons for dismissing the judicial review challenge; and provide reasons for my decision to dismiss the appeal. Summary of legislative background 5 Part VIIA of the Act provides a right of review by the SSAT of certain decisions of the Registrar. Section 88 of the Act identifies the following objective for the SSAT: 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. 6 The SSAT hearing procedure is affected by s 103N of the Act, which provides: (1) The SSAT, in reviewing a decision under this Part: (a) is not bound by legal technicalities, legal forms or rules of evidence; and (b) is to act as speedily as a proper consideration of the review allows; and (c) in determining what a proper consideration of the review requires, must have regard to the objective laid down by section 88. (2) The SSAT may inform itself on any matter relevant to a review of a decision in any manner it considers appropriate. Note: The SSAT Principal Member may give directions as to the procedure to be followed in connection with reviews (see section 103ZA) 7 Various administrative functions and powers are conferred on the Principal Member, including the power to: (a) convene a pre-hearing conference at which directions may be given inter alia the time within which evidence is to be brought before the SSAT (s 103); (b) give "general directions" as to procedures to be followed in connection with the review of decisions generally or give procedural directions for a particular review (s 103ZA(1)); and (c) require a person to give to the SSAT such information as the Principal Member requires, or produce to the SSAT, any documents in the custody or under the control of the person where "it is reasonably necessary for the purposes of a review" to do so (s 103K(1)). 8 In addition, a presiding member of the SSAT as constituted for the purposes of a particular review is also empowered to give directions as to the procedure to be followed for the hearing of that review (s 103ZA(4)). 9 As noted above, the two decisions which were the subject of the judicial review application in the Federal Magistrates Court (i.e. the second set of proceedings brought by the appellant in that Court) were made by the Principal Member and her delegate under ss 100 and 101 of the Act respectively. Those provisions are as follows: 100 Dismissal of an application (1) The SSAT Principal Member may, on the request of a party or on his or her own initiative, dismiss and application for review of a decision if: … (c) all of the parties consent; … 101 Parties to reviews (1) The parties to a review under this Part are: (a) the applicant; and (b) the Registrar; and (c) any other person who was entitled to apply for review of the decision under section 89; and … (5) the SSAT Principal Member may direct that a party to a review no longer be a party to the review if: … (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; … Summary of factual background 10 The proceedings have a lengthy history, stemming from a decision of the Registrar's delegate made on 23 May 2008 concerning the appellant's child support assessments for the period 20 March 2008 to 31 March 2010. The appellant's objection against that decision was disallowed on 18 May 2009. On a review brought by the appellant to the SSAT, the objection decision was affirmed by the SSAT on 29 September 2009. Appeal proceedings were then brought by the appellant in the Federal Magistrates Court under s 110B of the Act, which confers a right of appeal "on a question of law" from a decision of the SSAT. This was the first of two separate sets of proceedings brought by the appellant in that Court. 11 The appellant was successful in his first set of proceedings in the Federal Magistrates Court. On 7 September 2010 Dunkley FM set aside the SSAT's decision. His Honour found that: (a) the SSAT's conclusion that certain money paid by Mr Manchester's brothers was part of Mr Manchester's income or was a financial resource was contrary to the evidence and was also wrong in law; (b) drawdowns from an overdraft account were not income, having regard to previous authority; and (c) the SSAT was required by s 117(4) of the Child Support (Assessment) Act 1989 (Cth) to identify and quantify the needs of the children and to consider hardship to either of the parents, and failed to do so. 12 His Honour ordered that the matter be remitted to the SSAT for rehearing according to law. He also contemplated that additional evidence might be available for the rehearing. His Honour observed at [42] of his reasons for judgment: The Tribunal in that task will undoubtedly be assisted by the Taxation Returns and accounting records that should by now have been filed and prepared by Mr Manchester or his accountants. The Tribunal will also be assisted by other financial documents that should have by now have been prepared by Mr Manchester's advisors. The Tribunal will need in an analytical way consider (sic) the needs of the children, the hardship of the parties and make just and equitable findings. (Dunkley FM's decision is reported as Manchester v Manchester (SSAT appeal) [2010] FMCAfam 947). 13 In the light of Dunkley FM's orders, and acting as delegate of the Principal Member, a Senior Member of the SSAT convened a pre-hearing conference on 7 December 2010 at which various directions were given for the conduct of the remitted review. The Senior Member indicated that the directions would be reduced to writing and provided to the parties subsequently. 14 On 20 December 2010, the Senior Member's directions (the Directions) were issued. 15 Paragraph 3 of the Directions required the appellant by 21 January 2011 to produce to the SSAT certain documents and information concerning his financial affairs. The appellant was unrepresented at that time. He sought and obtained an extension of time, until 31 January 2011, to comply with paragraph 3 of the Directions. The hearing of the appellant's review application was scheduled to take place in the SSAT on 18 February 2011. 16 No materials were in fact produced to the SSAT by the appellant pursuant to paragraph 3 of the Directions. However, some, but not all, of the documents set out in paragraph 3 were produced to the SSAT by the appellant's accountant, responding to a compulsory notice issued to him under s 103K of the Act. 17 On 1 February 2011, the SSAT sent a letter to the appellant, inviting him to "show cause" by 11 February 2011 as to why he should not be removed as a party to the review proceedings under s 101(5)(c) on the basis of his failure to comply with the Directions. 18 It appears that around this time the appellant retained solicitors (Maclarens) to represent him. By letter dated 1 February 2011 Maclarens wrote to the SSAT on Mr Manchester's behalf enclosing an outline of written submissions in respect of the final hearing. In addition, Maclarens stated that it was unclear to them what material had been forwarded to the SSAT for consideration at the hearing and the SSAT was asked to identify that material. 19 The SSAT Senior Member replied to Maclarens' letter dated 1 February 2011 by a letter dated 4 February 2011, which drew attention both to Mr Manchester's non-compliance with the directions and the show cause letter. Maclarens' request that the material before the Tribunal be identified was met with a response to the effect that, pending a decision on whether their client would be removed as a party, copies of relevant material would not be forwarded. 20 There was an exchange of correspondence on 11 February 2011. Maclarens wrote two letters on that day to the Senior Member, and the Senior Member sent back a letter also dated 11 February 2011. The essence of that exchange of correspondence may be summarised as follows: (a) In the first of their two letters dated 11 February 2011, Maclarens clarified that, while they had been asked by their client to review certain documents and were also aware that some documents had been provided to the SSAT by Mr Manchester's accountant, it was unclear precisely which documents had been forwarded to the SSAT by their client. Maclarens' letter then addressed the show cause request. Maclarens submitted that it would be "a gross denial of procedural fairness" to remove Mr Manchester as a party to proceedings in circumstances where error had been found in respect of the SSAT's original decision and a rehearing had been directed by the Federal Magistrates Court. A further submission was made that, since the proceedings were by way of a rehearing, their client's non-compliance with the procedural directions caused no apparent injustice to his ex-wife because the "issues in the proceedings are well known, given that the factual matrix has already been the subject of the original hearing". Maclarens submitted that the "further material is only updating material covering a narrow time period"; (b) by letter also dated 11 February 2011, the Senior Member responded to Maclarens first letter dated 11 February 2011. The Senior Member rejected and described as "ill-conceived" the implicit submission made on behalf of the appellant to the effect that compliance by his accountant with the s 103K notice obviated the appellant's need to comply in full with paragraph 3 of the Directions. The letter concluded by saying that no reason had been provided for the appellant's non-compliance with the Direction and that a decision on the removal issue would be made by close of business that day; and (c) Maclarens then forwarded a second letter dated 11 February 2011 to the SSAT. The submission was made that to exclude a party from the review for non-compliance with procedural directions would be "an extreme step to take in any circumstances". The letter reiterated the submission that it would be a denial of procedural fairness to exclude Mr Manchester for non-compliance in circumstances where there had already been a hearing and a rehearing was being carried out by Court direction. A further submission was then made that s 101(5)(c) of the Act required the decision-maker to weigh up the prejudice to the appellant by excluding him from the proceedings, against the prejudice to Ms Manchester in the late provision of the documents. Finally, a submission was made that since the hearing was due to take place on 18 February 2011, "it is difficult to see what prejudice might flow to [Ms Manchester] as opposed to the obvious prejudice to [Mr Manchester] of excluding him from the proceedings". 21 On 15 February 2011 (i.e. three days before the hearing was scheduled to take place on 18 February 2011), the Senior Member wrote to both the appellant and Maclarens advising that: (a) the Principal Member had directed, pursuant to s 101(5)(c) of the Act, that the appellant no longer be a party to the review because of his failure to comply with the Directions; and (b) following receipt of a consent from the fourth respondent (Ms Manchester), the Senior Member acting as delegate had dismissed the review pursuant to s 100(1)(c) of the Act. 22 By letter dated 22 February 2011, the Principal Member provided the appellant with a detailed statement of reasons regarding her decision that he be removed as a party to the review. It is evident from the statement of reasons that the Principal Member: (a) accepted that the appellant had a reasonable excuse for not complying with paragraph 3 of the Directions to the extent that certain categories of document had either been provided by his account or, otherwise, did not exist; and (b) determined that the appellant had a reasonable opportunity to comply with the remainder of paragraph 3 of the Directions, but had provided no reasonable excuse for not doing so. The Principal Member's reasons for removing the appellant as a party to the SSAT review 23 The following relevant features of the Principal Member's reasons may be noted. First, she found that the express reference in s 103ZA of the Act (which confers powers on the SSAT's Principal Member) to s 88 of the Act (which requires the SSAT in carrying out its functions under the Act to pursue "the objective of providing a mechanism of review that is fair, just, economical, informal and quick"), evinced an intention that those powers were conferred to aid the SSAT's statutory objective of providing a mechanism of review that is fair, just, economical, informal and quick. 24 Secondly, the Principal Member, concluded that decisions by courts as to whether proceedings should be dismissed on the basis of non-compliance with an order of the Court should not be "transposed" to the SSAT. This was because, in the Principal Member's view, these decisions did not have to take into account an equivalent to the objective set out in s 88 of the Act. 25 In view of their significance to this appeal (and despite their length), it is convenient to set out [21] to [27] of the Principal Member's statement of reasons: The legal representative of [Mr Manchester] has submitted that, in exercising the power under s 101(5) of the Act, the SSAT Principal Member must weigh up the prejudice to [Mr Manchester] by excluding him from the proceedings against the prejudice to the second party in the late provision of documents. He did not cite authority for that proposition. In Lenijamar Pty Ltd v AGC (Advances) Limited [1990] FCA 520 at [33]-[35]; (1990) 27 FCR 388, Wilcox and Gummow JJ held that the power in Order 10 rule 7 of the Federal Court Rules for the Court to stay or dismiss a proceeding in that Court for the failure of a party to comply was "conditioned on one circumstance only: the failure of a party to comply with an order of the Court directing that party to take a step in the proceeding... There is no requirement of prejudice to the respondent". The discretion is unconfined. According to the majority judgment in A & Z [2006] FamCA 179 at [90], the majority view in Lenijamar was adopted by the Full Court of the Family Court in J and J [2000] FamCA 729 in the interpretation of an equivalent rule in the Family Law Rules. For the reasons explained above, the power in paragraph 101(5)(c) was conferred on the SSAT Principal Member in aid of the SSAT's statutory objective. There is no equivalent of this objective in legislation establishing any federal court or in the rules of any of those courts. For that reason, decisions by courts as to whether the discretion under rules of court to dismiss a proceeding, due to the non-compliance of an applicant with an order of the court, should not be transposed to the SSAT. Parliament's reasons for transferring jurisdiction, to review an administrative assessment of child support from the Family Court and the Federal Magistrates Court to the SSAT, must not be disregarded. The then Minister for Families, Community Services and Indigenous Affairs, Mal Brough MP, said in his Second Reading Speech of the Child Support Legislation Amendment (Reform of the Child Support Scheme – New Formula and Other Measures) Bill 2006: Until now, there has been no mechanism for external administrative review of child support decisions except through the courts, which is expensive and time consuming for parents. The new arrangements will improve the consistency and transparency of child support decisions and will provide a review mechanism that is inexpensive, fair, informal and, most importantly, quick. The imposition of a test wholly premised on "prejudice" is not consistent with Parliament's emphasis on the quickness of the review mechanism, or with the statutory objective of the SSAT as enacted. Parliament is presumed to have known of the consequences of removal of a party when it enacted s 100 (dismissal of an application) and s 110B (which limited the right of appeal to "a party") of the Act, and to have chosen not to impose such a test or fetter on the discretion conferred by paragraph 101(5)(c) of the Act. Indeed, Parliament chose to give the SSAT Principal Member the power to remove a party from a review (for failure to comply with a direction or order of the SSAT or of the SSAT Principal Member) rather than a power to dismiss the application for review if the applicant is the non-compliant party. In making that choice, Parliament necessarily contemplated that an application for review might be heard and decided on its merits even though an applicant had been removed from the review. The inference to be reasonably drawn from Parliament's approach is that the interests of the other (compliant) party are paramount. Further, the test proposed by [Mr Manchester's] legal representative requires an assumption to be made, at the time at which the SSAT Principal Member makes the decision on whether to remove a party, that the direction can be, and will be, complied with belatedly. 26 Thirdly, the Principal Member rejected the appellant's contention that he would be denied procedural fairness if he was to be removed as a party to proceedings which had been remitted for a rehearing by Dunkley FM. In rejecting that argument, the Principal Member referred to the fact that, in allowing Mr Manchester's first appeal to the Federal Magistrates Court, Dunkley FM expressly recognised that the SSAT would be assisted by further documents concerning Mr Manchester's financial affairs and, during the rehearing, the fourth respondent had put in issue various issues concerning the appellant's financial affairs. Against those background matters, the Principal Member concluded that the appellant's non-compliance with the Directions left the SSAT without the evidence to properly consider and determine the relevant issues relating to his financial affairs. 27 Again, because of their relevance to the appeal before me and despite their length, it is convenient to set out [53] to [61] of the Principal Member's reasons, which explain why she rejected the appellant's arguments concerning procedural unfairness: Assertion of denial of procedural fairness Maclarens submitted in their first letter of 11 February 2011 that it would be a denial of procedural fairness to remove [Mr Manchester] "in circumstances where a Court has found error with a determination made by the Tribunal and directed a re-hearing", and "there is no apparent injustice to the other party by [Mr Manchester's] apparent failure to comply with procedural directions". In considering this submission, I noted that (in allowing [Mr Manchester's] appeal) Dunkley FM expressly recognised that the SSAT would be assisted by further financial documents: see Manchester at [42]. In the second letter of 11 February 2011, Maclarens disavowed any suggestion that the delegate of the SSAT Principal Member was not entitled to make the directions. I did not accept the submission that there was no apparent injustice to the second party by [Mr Manchester's] failure to comply with the directions. At the conference, the second party had put in issue the takings and expenses of [Mr Manchester's] business; the value and rental value of the property owned by him; and the truthfulness of [Mr Manchester's] account that his brothers made payments to him or into his bank accounts. In her written submissions pursuant to the directions, the second party pressed these issues. The second party had agitated such issues at the 2009 hearing by the SSAT: see paragraphs 25 to 29 of the 2009 decision. The members who constituted the SSAT in 2009 were "not satisfied that the business accounts provided an accurate record of the business performance": see paragraphs 44 and 45 of the 2009 decision. It was apparent, from what [Mr Manchester] said at the conference and from the documents produced by his accountant (Mr Sprainger), that [Mr Manchester's] BAS statements and income tax returns were being prepared solely on the basis of "takings" and "stock" amounts provided by [Mr Manchester] rather than from source documents. [Mr Manchester] had failed to comply with directions in 2009 that he provide evidence of the market value of, and the weekly rent which could be obtained on the open market for, the property at Hoxton Park owned by him, and the SSAT made no finding about the value of the Hoxtom (sic) Park property in the 2009 decision. I concluded that [Mr Manchester's] non-compliance with the directions (given by Ms Bullock) would have left the SSAT without the evidence to properly consider and determine the issues. Further, for the reasons earlier explained, the power to remove a party is to be exercised in aid of the SSAT's statutory objective of providing a mechanism of review that is fair, just, economical, informal and quick. To allow a hearing to proceed where a party has not complied with directions to provide documents, necessary for consideration of the review, would result in an unfair and unjust mechanism of review. To adjourn a hearing in circumstances in which a party has not complied with directions to provide documents, necessary for consideration of the review, and has provided no reasonable excuse for the non-compliance may result in a mechanism of review which is neither economical nor quick. In any event, no application for an adjournment was made by Maclarens. In their second letter of 11 February 2011, Maclarens also rested the submission, that removal of [Mr Manchester] as a party would be denial of procedural fairness, on the premises that "material had already been provided to the tribunal" and "the additional material required was only in the nature of updating material". The latter premise is incorrect. As to the first premise, I accepted that [Mr Manchester] had a reasonable excuse for not providing documents produced by him in 2009, or by Mr Sprainger in 2011. For the reasons explained earlier, I was satisfied that [Mr Manchester] knew that Mr Sprainger did not have, and therefore could not have produced, any of the documents specified in paragraphs 3.8 to 3.18 of the directions. The final aspect of the submission that it would be a denial of procedural fairness to remove [Mr Manchester] as a party was that "the period under review is a limited two year period which has now closed". Nothing in the Act or the Child Support (Assessment) Act 1989 limits the SSAT to making a decision in respect of the same period covered by the decision under review: Dwyer and McGuire [1993] FamCa 82 at [34]. In other words, the fact that the decision under review covered the period from 20 March 2008 to 31 March 2010 would not preclude the SSAT from making a decision which operated beyond 31 March 2010. In any event, if a period is short and retrospective, the task of providing documents in relation to relevant issues during that period should be easier. The proceedings below before Halligan FM 28 The second set of proceedings in the Federal Magistrates Court were by way of judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act). Federal Magistrate Halligan delivered reasons for judgment on 18 November 2011. 29 The appellant's primary case as conducted below was that the SSAT Principal Member committed one or more judicial review errors in making the removal decision because she did not consider the prejudice to the appellant of removing him as a party to the SSAT proceedings. The appellant pleaded that the Principal Member's decision was liable to be set aside by reference to the following three heads of judicial review set out in the ADJR Act: (a) failure to take into account a relevant consideration; (b) the exercise of a power which was so unreasonable that no reasonable person could have so exercised it; and (c) error or law. 30 Halligan FM's reasons for decision record at [27] that the appellant submitted that: … his case stood or fell on the principles that govern the exercise of the power to remove a party under s 101(5)(c), it being contended that the SSAT Principal [Member] should have balanced the prejudice to the [appellant] from removal as a party against the prejudice to the fourth respondent of not removing the [appellant] as a party, which it was contended the SSAT Principal Member had failed to do. 31 His Honour's reasons further record at [28] that the appellant advanced an alternative argument, namely that if it was found that the Principal Member applied the appropriate test in exercising the discretion whether or not to remove the appellant as a party to the review, that decision was unreasonable in the sense of the words set out in s 5(2)(g) of the ADJR Act concerning that ground of judicial review. 32 In [31] of his reasons for judgment, his Honour found that the letter written by Maclarens in response to the show cause notice "squarely raised the issue of prejudice, and did so in terms suggesting the balance of prejudice was the only relevant consideration". 33 After summarising the Principal Member's statement of reasons, his Honour gave the following reasons for dismissing the appellant's judicial review application. First, Halligan FM noted that the appellant's written submissions before him argued that the Principal Member proceeded on the basis that "the discretion under s 101(5)(c) was conditioned on one circumstance only, namely the failure of a party to comply with an order of the court (sic) directing that party to take a step in the proceedings". The appellant apparently contended that the Principal Member had found that the discretion was "unconfined and no requirement for consideration of prejudice (sic)". Halligan FM concluded that that contention did not reflect the Principal Member's reasons and, in particular, the matters set out in [22] to [24] of the statement of reasons. In rejecting the appellant's argument to the effect that the Principal Member proceeded on the basis that prejudice was not a relevant consideration in determining whether or not to remove a party from the proceedings, Halligan FM found that the Principal Member actually rejected that very proposition in holding that court decisions should not be transposed to the SSAT. His Honour held in effect held that the Principal Member's rejection of the relevance of cases such as Lenijamar did not mean that the Principal Member regarded prejudice to the party adversely affected by a removal decision to be an irrelevant consideration. The essence of his Honour's reasons on this matter are set out in [47] in the following terms: In my view, it is apparent that the SSAT Principal Member did not hold that prejudice to the applicant was irrelevant, when one considers her statement that her powers were not to be exercised "by reference solely to notions of fairness or justice" (Reasons, [19]). Rather, in my view the SSAT Principal Member was simply pointing out that where specific statutory considerations governed the exercise of her discretion, submissions suggesting she take into account only some of those considerations, and authorities on the exercise of a similar discretion not similarly circumscribed, were not apposite to the task she had to undertake (original emphasis). The appeal 34 The appellant's notice of appeal claimed that Halligan FM erred in the following three respects: (a) failure to find that the Principal Member's reasons failed to take into account prejudice to the appellant if he were removed as a party in the SSAT rehearing; (b) failure to consider that the effect of the appellant's removal as a party would: bring to an end the appellant's substantive rights to a rehearing in the SSAT; leave in place the decision which had been found by Dunkley FM to contain errors of law concerning the treatment of borrowings as income and treating as income certain payments received by the appellant on the sale of real estate owned by him; and (c) failure to find that the Principal Member improperly exercised her power to remove the appellant as a party to the SSAT proceedings. 35 I shall now deal with each of those three grounds of appeal. Ground 1 36 During the course of oral argument before me, Mr Laughton SC (who appeared on behalf of the appellant), clarified the intended ambit of ground 1 of the notice of appeal. In particular, he confirmed that that ground was not addressed to the issue whether or not prejudice to the appellant is a mandatory relevant consideration in exercising the power under s 101(5)(c) of the Act (it being common ground that it was), but rather focused on the question whether Halligan FM erred in not accepting the appellant's argument that the Principal Member had failed to take prejudice to the appellant into account. The appellant argued that the Principal Member had made no attempt to weigh the prejudice to the appellant by excluding him from the SSAT proceedings against the prejudice to his ex-wife occasioned by the late provision of documents. 37 As the Commonwealth pointed out in its written submissions, this clarification of the intended ambit of ground 1 of the appeal renders it unnecessary to consider and determine the correctness of the Principal Member's analysis as to the extent to which decisions dealing with court powers to dismiss proceedings for failure to comply with court orders or directions can be applied to s 101(5)(c) of the Act. If the issue had arisen, it may have been necessary to address the following matters: (a) whether, contrary to the Principal Member's view, there is in fact any inconsistency between the principles identified by Wilcox and Gummow JJ in Lenijamar at 395-396 and the proper approach to the exercise of the discretion under s 101(5)(c); and (b) whether the views expressed by the Principal Member properly took into account the relevance and significance of important principles affecting this Court's case management since 1 January 2010, when ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth) (FCA Act) commenced. In addition, the Federal Court Rules 2011 may also have been relevant, in view of the requirement imposed by s 37M(3) of the FCA Act to the effect that those Rules must be interpreted and applied in a way that best promotes the overarching purpose of facilitating the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. 38 The central question raised by ground 1 of the appeal is whether Halligan FM erred in rejecting the appellant's argument that the Principal Member had failed to take his prejudice into account. In my view, the appellant has failed to establish this ground of appeal. 39 The same argument was rejected by Halligan FM by express reference to [53] to [61] of the Principal Member's reasons, which are set out above in paragraph 27. It is evident from those paragraphs that the Principal Member: (a) made express reference in [53] to the appellant's submissions concerning the relative prejudice to himself and his ex-wife; (b) expressly rejected the appellant's argument that there was "no apparent injustice" to his ex-wife by his failure to comply with the Directions, noting that the documents sought in paragraph 3 of the Direction were relevant to matters put in issue by his ex-wife ([55]) and were necessary for consideration of the review ([58]); (c) noted that matters concerning the appellant's financial position had been raised by his ex-wife in the 2009 SSAT proceedings and found that the SSAT had not been able to properly consider and determine those issues at the time due to a lack of relevant documentation, partly arising by the appellant's earlier non-compliance with directions (see [56]-[57]) respectively; (d) balanced the competing interests of the appellant and his ex-wife by reference to the SSAT's statutory objective as expressed in s 88 of the Act and, in so doing, expressly rejected the option of adjourning the hearing on the basis that the appellant had failed to provide a reasonable excuse for his non-compliance with paragraph 3 of the Directions ([58]); (e) having regard to the above matters, rejected the appellant's submissions that the SSAT already had sufficient material to determine the review or that the additional material was only in the nature of "updating material" ([59]); and (f) addressed the appellant's argument that the period under review was a limited two year period which had now passed and found that the SSAT was not precluded from making a decision which operated beyond that period ([61]). 40 The appellant argued before me that significance should attach to the fact that [53] to [61] of the Principal Member's reasons appear under the heading "Assertion of denial of procedural fairness" and that there is no express reference in those paragraphs to the word "prejudice". It was argued that "procedural fairness" and "prejudice" were separate topics. 41 For the following reasons, I reject the appellant's arguments concerning the first ground of his appeal. First, I accept the Commonwealth's submission that paragraphs [53] to [61] of the Principal Member's reasons have to be considered in context. Those paragraphs were in response to the submissions made by Maclarens on behalf of the appellant in the second of their letters dated 11 February 2011 concerning the exercise of the discretion under s 101(5)(c) of the Act. It is understandable that this section of the Principal Member's reasons were set out under a heading which included the words "procedural fairness", as that is the nomenclature which Maclarens used. 42 Secondly, I consider that the Federal Magistrate was correct in concluding as he did in [49] that the Principal Member had dealt with the appellant's submissions concerning his prejudice relative to that of his ex-wife, with particular reference to the Principal Member's reasons at [53] to [61] (as summarised by me in [39] above). 43 Thirdly, I do not accept that there was any legal obligation on the Principal Member to deal separately with the topics of procedural unfairness and prejudice. In the way in which the matter had been presented to the SSAT on the appellant's behalf, no meaningful distinction was drawn between those two subject matters. Indeed, the submissions that were made on the appellant's behalf to the effect that he would be denied procedural fairness if he were removed as a party to the SSAT review proceedings were based in large measure on the prejudice he would suffer if he was unable to continue to participate as a party in the proceedings. It was submitted that part of that prejudice lay in the fact that he had succeeded in obtaining an order from Dunkley FM setting aside the SSAT's first decision and directing it to conduct a rehearing according to law. The Principal Member made it expressly clear in [30.9] of her reasons that she had taken into account both letters dated 11 February 2011 from Maclarens to the Senior Member. It was those letters which set out at some length the arguments of procedural unfairness and prejudice to the appellant. The Principal Member also recorded in [30.7] that she had taken into account Maclarens' letter dated 1 February 2011, as well as stating in [30.11] that she had taken into account Dunkley FM's reasons for judgment. 44 Finally, in my view the appellant's first ground of appeal is not assisted by the Principal Member's reference in the final sentence to [26] of her reasons to "the interests of the other (compliant) party are paramount". Fairly read, and in its context, that sentence describes the legislative scheme for addressing non-compliance as being one which does not deal with such non-compliance by immediately dismissing the proceedings, but rather creates a power to remove a party from review proceedings. As the Principal Member pointed out, where the review applicant is the non-compliant party, the legislative scheme is one which contemplates that a review application might still be heard and decided on its merits even though the applicant has been removed from the review. In that sense, therefore, there is no error in the Principal Member describing that legislative scheme as one which creates an inference that the interests of the other compliant party are "paramount". That is correct in the sense that the review proceedings continue despite the removal of the non-compliant party (unless, of course, some other power is enlivened which precludes the review continuing, such as a separate decision to dismiss the proceedings where the remaining parties all consent, which is what happened here). 45 For all these reasons, I reject the appellant's first ground of appeal. Ground 2 46 The appellant's second ground of appeal claims that Halligan FM failed to consider that the effect of the removal decision was to terminate the appellant's substantive rights to a rehearing of his application for review before the SSAT, with the consequence that the decision of the SSAT previously found by Dunkley FM to be vitiated by errors of law would remain in place. 47 The first point to note about this argument is that it misconceives the effect of the dismissal of the second SSAT review proceedings. The effect was not to restore the first SSAT decision because that decision had been set aside by Dunkley FM's orders. The effect of those orders was to restore the original decision of the Registrar's delegate. Even though it is true that the original decision was affirmed by the first decision of the SSAT, it is technically incorrect to say that that latter decision sprang back when, by consent, the second SSAT rehearing proceedings were dismissed. 48 Secondly, in my view the wording of ground 2 does not sit comfortably with the nature of the judicial review function being exercised by Halligan FM. Rather, it seems to assume wrongly that the Federal Magistrate was exercising something akin to a de novo review. 49 Thirdly, as developed further below in [57], it is also relevant to note that it is open to the appellant to seek an extension of time to challenge the original decision by the Registrar's delegate in the SSAT. 50 Fourthly, as discussed above, the appellant's concerns regarding the impact on his rights to a rehearing if he were removed from a party were set out at some length in Maclarens' letters dated 11 February 2011. In [30.9] of her reasons, the Principal Member expressly records that she took both these letters into account. The appellant has established no basis for doubting the correctness of that statement. As Halligan FM concluded at [49] of his reasons for judgment, the Principal Member addressed the submissions made on behalf of the appellant as to prejudice in [53] to [61] of her reasons and in the context of also dealing with and rejecting the appellant's submission to the effect that his ex-wife would suffer no prejudice if the hearing was to proceed absent the additional material required from the appellant. 51 In my opinion, the appellant has failed to establish his second ground of appeal. Ground 3 52 There is some uncertainty as to the intended meaning and ambit of the appellant's third ground of appeal, which claims that Halligan FM erred in failing to find that the Principal Member "improperly exercised" the power under s 101(5)(c) in making the removal decision. At the hearing before me, Mr Laughton SC confirmed that this ground of appeal was intended to reflect that part of the appellant's application for judicial review which alleged that the removal decision was unreasonable within the meaning of ss 5(1)(e) and 5(2)(g) of the ADJR Act. 53 The appellant's unreasonableness argument is referred to in [23] of Halligan FM's reasons for judgment. His Honour's summarised the appellant's contention that the Principal Member was obliged to consider the prejudice to the appellant of removing him as a party to the SSAT proceedings and it was claimed that he failed to do so. Halligan FM records that it was contended on behalf of the appellant that, as a result of the Principal Member's failure to consider that prejudice, the removal decision constituted an improper exercise of power for the purposes of s 5(1)(e) of the ADJR Act in that: (a) a relevant consideration was not taken into account (s 5(2)(b) of the ADJR Act); and (b) the exercise of power was so unreasonable that no reasonable person could have exercised it (s 5(2)(g) of the ADJR Act). 54 It appears from Halligan FM's reasons for judgment that his Honour did not deal expressly with the appellant's unreasonableness argument. For the following reasons, however, I do not consider that this presents an appellable error. First, the issue of unreasonableness was predicated on the appellant establishing that the Principal Member had failed to consider the prejudice to the appellant of removing him as a party to the SSAT proceedings. As noted above, Halligan FM correctly rejected that proposition and found that the Principal Member did take into account that prejudice. Accordingly, the predicate to the appellant's argument was not established and his unreasonableness argument must necessarily have failed before Halligan FM. 55 Secondly, in my view, while not expressly dealing with the appellant's unreasonableness argument, it is necessarily implicit in Halligan FM's reasons that he did so in rejecting the central focus of the appellant's case relating to prejudice. In particular, I consider that his Honour's rejection of the appellant's judicial review ground of unreasonableness is implicit in [57] of his Honour's reasons for judgment and, in particular, in the last sentence thereof: In the result, the applicant has failed to demonstrate that the SSAT Principal Member failed to consider the relevant matter he contended she failed to consider in exercising the power to remove him as a party to the review proceedings before the SSAT. He has thus failed to demonstrate any reason to set that decision aside (emphasis added). 56 In my view, his Honour's reference to the appellant having failed to demonstrate "any reason" to set aside the Principal Member's decision to remove the appellant as a party is an implicit reference to each of the three grounds of judicial review raised by the appellant in respect of this aspect of the matter, including unreasonableness. 57 Finally, as the appellant accepted during the oral hearing before me, even if he were to fail in this appeal, it is open to him, despite the removal decision, to re-apply to the SSAT for a review of the Registrar's original decision regarding his child support assessments and to seek an extension of time under s 91 of the Act. Any such application for an extension of time would presumably be considered by the SSAT on its merits and take into account the somewhat unusual circumstances of this matter which have resulted in the restoration of the original decision of the Registrar's delegate. 58 For all these reasons, I consider that the appeal should be dismissed. There is no need to make any order for costs. As noted above, the first to fourth respondents inclusively all filed submitting appearances and the Commonwealth did not seek any order for costs. I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths. Associate: Dated: 10 August 2012