FEDERAL COURT OF AUSTRALIA BYI16 v Registrar Child Support [2017] FCA 139 Appeal from: Administrative Appeals Tribunal, No. 2016/MC009091, 11 July 2016 File number: VID 857 of 2016 Judge: PAGONE J Date of judgment: 23 February 2017 Catchwords: PRACTICE AND PROCEDURE – appeal from Administrative Appeals Tribunal (Tribunal) – Tribunal found that appellant's application was not lodged within the prescribed time – Tribunal dismissed application for extension of time Legislation: Administrative Appeals Tribunal Act 1975 (Cth) Child Support (Assessment) Act 1989 (Cth) Federal Court Rules 2011 (Cth) Cases cited: Brown v Repatriation Commission (1985) 7 FCR 302 Haritos v Federal Commissioner of Taxation (2015) 233 FCR 315 Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 Date of hearing: 18 November 2016 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 21 Counsel for the Appellant: The appellant appeared in person Counsel for the Respondent: Mr C Tran Solicitor for the Respondent: Mills Oakley REASONS FOR JUDGMENT VID 857 of 2016 BETWEEN: BYI16 Appellant AND: REGISTRAR CHILD SUPPORT Respondent JUDGE: PAGONE J 1 This is an appeal from a decision in the Social Services & Child Support Division of the Administrative Appeals Tribunal made on 19 July 2016 which had dismissed an application by the appellant to review a decision by the Department of Human Services not to extend the time by which he could make an application under s 151B of the Child Support (Assessment) Act 1989 (Cth) ("the Assessment Act"). The appellant was unrepresented before the Tribunal and at the hearing of the appeal. The Registrar was represented at the hearing by counsel and solicitors. 2 The respondent is the Registrar of Child Support and objected to the competency of the appeal by notice of objection to competency dated 9 September 2016. The objection to competency was heard on 18 November 2016 together with the substantive hearing of the appeal. The appeal was brought under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act") which requires there to be, and limits the appeal to, a question of law: see Brown v Repatriation Commission (1985) 7 FCR 302 at 304; TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178. Whether an appeal raises a question of law is to be approached as a matter of substance rather than of form, and in cases of doubt, that may require the Court to consider the notice of appeal, the alleged question or questions of law, the grounds raised, the statutory context, and the Tribunal's reasons for its decision: see Haritos v Federal Commissioner of Taxation (2015) 233 FCR 315 at [62(6)] and [94]. 3 The notice of appeal in this proceeding was prepared by a litigant in person, who does not have legal training or experience, and not by a qualified or trained lawyer. It stated as a question of law simply "Misfeasance in Public Office" and did not identify the way in which a question of law involving misfeasance in public office arose from the decision of the Tribunal. The appellant also filed an affidavit and written submissions from which it was also not possible to identify a question of law arising from the decision of the Tribunal sought to be challenged. It emerged, however, during the hearing of the appeal that the appellant's complaint was that the decision of the Department of Human Services had been based upon a factual error. It also emerged from the hearing that the Tribunal had accepted the appellant's evidence about the error but that the Tribunal had based its decision on other grounds which the notice of appeal to this Court did not challenge. The impression given by the appellant at the hearing was that he did not understand the distinction between, and the relevant legal consequences of the distinction between, his complaint about factual errors and an adverse decision which did not depend upon the factual errors he complained about. The appellant also gave the impression at the hearing that he had neither explored, nor had the abilities to explore, whether the operative basis of the Tribunal's decision may in the circumstances have been affected by legal error for some reason other than his complaint of the factual error which had not been the basis of the Tribunal's decision. The Court on an appeal, however, was not able to undertake an enquiry into the facts in the way that a legal adviser might have done with the appellant in chambers if acting for the appellant. It would also not have been appropriate for the Court to explore possible lines of inquiry with the appellant as an unrepresented litigant because those inquiries may have required forensic testing or other inquiries to be made which the Court could not undertake without the risk of compromising the appellant's rights or prejudicing the rights of the respondent. It was therefore not possible at the hearing to explore with the appellant whether the Tribunal's decision was erroneous for other grounds that the appellant had not raised in his notice of appeal or at the hearing of the appeal. The parties were informed at the conclusion of the hearing on 18 November 2016, however, that a decision on the appeal would not be given for at least a few weeks and that the appellant would, therefore, have some time in which to seek legal advice if he wished to do so in light of what had been said at the hearing of the appeal. A referral was subsequently made after the hearing for pro bono assistance pursuant to r 4.12 of the Federal Court Rules 2011 (Cth). 4 The parties were notified on 9 December 2016 that judgment in the appeal would be given on 13 December 2016. The parties were present on 13 December 2016 when the matter was called for judgment but the appellant informed the Court before judgment was given that, having had the benefit of pro bono legal assistance, he had previously filed an application for leave to amend the notice of appeal together with a short affidavit dated 9 December 2016 annexing a proposed amended notice of appeal. The appellant's application for leave to amend the notice of appeal had not been served upon the respondent and had not made its way to the Court but the application which the appellant had sought to file around 9 December 2016 was located in the registry before judgment was given. The annexure to the appellant's application contained the following as a proposed amended notice of appeal for which leave was sought: QUESTION OF LAW: The Tribunal made an error of law because it found for the purposes of section 151C(2) of the Child Support (Assessment) Act 1989, that there were no 'exceptional circumstances' Justifying the Appellant making an application to extend a child support assessment after the Appellants child's 18th Birthday. The Tribunal should have found that there were 'exceptional circumstances' sufficient to justify the appellant making an late application to extend, being circumstances where: (a) The Department informed the appellant that it would post to the appellant an 'important letter' advising him about his option to seek an extension to the child support assessment, but that letter was not received by the appellant; and, (b) The Department created in the appellant an expectation that he would be informed about his rights and obligations concerning his child's child support assessment, but the Department failed to meet that expectation, which was in the circumstance unfair. The short affidavit said that all of the statements in the annexure were true and correct. The parties were then heard on whether to hear the appellant's application for leave to amend the notice of appeal and for leave to make further submissions. The respondent had not previously been served with the appellant's application for leave to amend the notice of appeal and was understandably not able to respond to the application on that occasion. In the circumstances judgment was not delivered on 13 December 2016 but the following orders were made: 1. By 12:00pm on 19 December 2016, the Applicant file and serve on the Respondent any written submissions or further material in support of his interlocutory application for leave to amend the Notice of Appeal filed on 9 December 2016, together with submissions or further material in support of the proposed Amended Notice of Appeal set out at annexure AB1 of the Applicant's affidavit sworn on 9 December 2016. 2. By 12:00pm on 10 January 2017, the Respondent file and serve on the Applicant any written submissions or further material in relation to the Applicant's interlocutory application for leave to amend the Notice of Appeal filed on 9 December 2016, together with submissions or further material in relation to the Applicant's proposed Amended Notice of Appeal set out at annexure AB1 of the Applicant's affidavit sworn on 9 December 2016. 3. By 12:00pm on 17 January 2017, the Applicant file and serve on the Respondent any written submissions or further material in reply. 4. The matter be heard on the papers. 5. The parties have leave to apply to the Court to vary these Orders. 6. The Respondent's costs of and incidental to the proceedings be reserved. The appellant was subsequently assisted by pro bono counsel who prepared written submissions dated 19 December 2016. On 10 January 2017 the respondent filed submissions, and two affidavits, opposing the appellant's application. The appellant's earlier written submissions (dated 19 December 2016) appear to have been served upon the respondent by that date but seem not to have been filed with the Court. The respondent's written submissions dated 10 January 2017 referred to earlier written submissions by the appellant which prompted inquiries to be made on behalf of the Court by registry staff about the appellant's written submissions. A copy of the appellant's written submissions dated 19 December 2016 was subsequently provided to the Court by the respondent. On 17 January 2017 the appellant filed written submissions in reply to those for the respondent dated 10 January 2017. The submissions filed for the appellant dated 19 December 2016 and 17 January 2017 were signed by counsel who assisted the appellant pro bono. 5 The application for review which had been considered by the Tribunal was for an extension of time to object to a decision by the Department. The appellant and his wife are the separated parents of a child who turned 18 years of age on 23 May 2015. The appellant had the care of the child at all relevant times and was entitled to child support under an assessment registered as "Private Collect" (which meant that the Department did not collect child support on his behalf). However, the child support to the appellant stopped after his son turned 18 years of age on 23 May 2015. An application to extend child support beyond the child's 18th birthday generally needs to be made before the child's 18th birthday (in this case 23 May 2015) but no such application was made by the appellant by that date. On 18 June 2015 the appellant had discussions with an officer of the Department about his family tax benefit having decreased after his son's 18th birthday and the appellant subsequently applied to the Department for the child support assessment to continue beyond his son's 18th birthday during the period that the son was still at high school. On 26 October 2015 a Departmental officer decided not to extend the child support assessment beyond the son's 18th birthday and notified the appellant of this decision by letter dated 26 October 2015. The appellant did not object to the decision of 26 October 2015 within the 28 days provided for, but on 5 February 2016 he applied to the Department for an extension of time in which to object to that decision. An officer of the Department decided on 23 March 2016 to refuse the application for an extension of time to object to the decision of 26 October 2015. On 4 April 2016 the appellant applied to the Tribunal for a review of the decision refusing him permission to object out of time. That proceeding was heard on 15 June 2016 and was decided against the appellant on 11 July 2016 in a decision posted to the appellant on 19 July 2016. 6 The decision under review by the Tribunal was the refusal on 23 May 2016 to allow the appellant to make an application on 5 February 2016 objecting to a decision made on 26 October 2015 because more than 28 days had passed from the date when the appellant had been given notice of the decision he sought to have reviewed. In dealing with that application, however, it became relevant for the Tribunal to consider the merits of an application by the appellant "for an extension of child support assessment past" his son's 18th birthday. In that context it became relevant for the Tribunal to consider whether the appellant had "exceptional circumstances" justifying the making of an application after the child's 18th birthday. The appellant maintained that he had not made an application before his son's 18th birthday for reasons which stemmed from a telephone conversation on 7 March 2015 between him and a Departmental officer known to him from the telephone conversation as "Maria". The telephone conversation was audio recorded by the Department and the Tribunal had the benefit of listening to the recordings of the telephone conversation and referred to the recordings in its reasons for decision. The significance of the telephone conversation to the appellant's claim of exceptional circumstances justifying an application being made after his son's 18th birthday was that he was told in the conversation that he would receive an important letter, which the Tribunal found that he did not receive, concerning his son's child support assessment in circumstances in which he had not been told that he needed to make any application before his son's 18th birthday but, rather, had believed from the conversation that nothing would change with regards to the payments after his son's 18th birthday if he did nothing. 7 The Tribunal accepted that the appellant did not receive the letter which Maria had informed him on 7 March 2015 that he would receive. The Tribunal also accepted that there had been clear evidence of previous correspondence having been sent to the appellant by the Department that was not received by him but which had been returned undelivered to the Department. The evidence to support these findings was also set out in the appellant's affidavit dated 1 June 2016 in the appeal which showed that the Department had his address incorrectly recorded to be in Canberra, Australian Capital Territory, although he had never lived there but at all relevant times had lived at an address in Broadmeadows, Victoria, pursuant to a tenancy agreement dated 28 September 2007. There was no objection to this evidence given by the appellant in the appeal and none of this evidence in this respect was inconsistent with the findings of fact which were made by the Tribunal and, therefore, may be taken into account in the appeal: see AAT Act, s 44(7). 8 The appellant's affidavit dated 1 June 2016 stated that on Saturday 7 March 2015 he received an unexpected telephone call from a Departmental officer named Maria who stated that the Department had an important letter that needed to be sent to him because his eldest child was about to turn 18 years of age. The appellant said that Maria informed him that all letters that the Department had sent to him since 2008 had been returned to the Department and, because of that, she asked for his address details to correct the error. The appellant said, and the Tribunal found, that the letter never reached the appellant and that the appellant had not been told about the potential impact on his family tax benefit entitlements if he did not apply for an extension before his son's 18th birthday. At [20] the Tribunal said: With respect to [the appellant] not receiving the Department's letter of 9 March 2015, the Tribunal notes that there is clear evidence that previous correspondence sent to [the appellant] by the Department was not received by him but returned to the Department. [The appellant] has raised issues concerning whether or not the Department properly recorded his correct address. The Tribunal found [the appellant] to be a believable witness and it accepts his evidence that he did not receive a letter dated 9 March 2015. On this basis it must be concluded that [the appellant] did not receive written notice prior to [the appellant's son's] 18th birthday about: the option of seeking an extension of the child support assessment past [the appellant's son's] 18th birthday; the need to make such an application before [the appellant's son's] 18th birthday; and, the potential impact on family tax benefit entitlements if such an application was not made. Having said that, there is clear evidence of discussions between [the appellant] and the Department's officer "Maria" on 7 March 2015. Having had the opportunity to listen to the recording of the conversations on 7 March 2015, the Tribunal is satisfied that [the appellant] was verbally advised that he had the option of seeking to extend the child support assessment past [the appellant's son's] 18th birthday to the end of the school year if [the appellant's son] was still at school. During the conversation [the appellant] asked the officer whether he had to do anything and the officer made it clear it was a matter for [the appellant] to contact the Department only if he wanted an extension – if he was not interested he could "just leave it". It is clear from the recording that [the appellant] was not told that any application for an extension needed to be made before [the appellant's son's] 18th birthday. He was also not told about any potential impact on family tax benefit entitlements. (Emphasis in original, footnotes omitted.) The Tribunal concluded, however, that the appellant did not have reasonable prospect of success in relation to an application to extend the child support assessment because the circumstances relied upon did not demonstrate "exceptional circumstances" for the purposes of s 151C(2)(e) of the Assessment Act. 9 Section 151B of the Assessment Act provided that a carer who is entitled to child support may apply for a child support assessment to continue in force past 18 years of age until the last day of the secondary school year in which the child turns 18. An application under s 151B, however, was required to be made before the child's 18th birthday unless there were "exceptional circumstances" justifying the making of an application after the child's 18th birthday. Section 151C(2) expressly provided that the Registrar was required to accept an application if, and only if, satisfied of certain matters including, under s 151C(2)(e), namely either that: (i) the application is made before the child's 18th birthday; or (ii) there are, in the Registrar's opinion, exceptional circumstances justifying the making of the application after the child's 18th birthday. In this case an application had not been made before the appellant's son's 18th birthday and the Tribunal concluded that the facts relied upon by the appellant did not demonstrate exceptional circumstances to warrant acceptance of an application after the 18th birthday of the appellant's son. 10 The Tribunal's reasons for that conclusion were stated at [21]-[23] as follows: 21 There are some pertinent observations to be made about this issue. First, having considered the relevant legislation, the Tribunal is satisfied that the Department was not under any legal obligation to notify [the appellant] about his options to seek an extension past Angus's 18th birthday. Also, the Department was not legally obliged to notify [the appellant] that any such application needed to be made by the time of Angus's 18th birthday or notify him that failure to make an application might have ramifications for his family tax benefit entitlements. In other words, the concerns or alleged failures by the Department raised by [the appellant] do not arise from any failure by the Department to carry out a legal obligation under legislation. A second observation to be made is that paragraph 2.5.5 of the Child Support Guide (such Guide being one of the Australian Government's Guides to Social Policy Law) provides as follows with respect to late applications to extend child support assessments past a child's 18th birthday: Consideration of late applications The Registrar can accept an application made after the child's 18th birthday if, in the Registrar's opinion, there are exceptional circumstances justifying the making of the application after the child's 18th birthday (CSA Act section 151C(2)(e)(ii)). The following are examples of circumstances that the Registrar may consider 'exceptional' in deciding whether to accept a late application. This is not an exhaustive list and each case must be considered on its own merits. • Serious health problems delayed lodgement (written confirmation from a health practitioner will be required), • An application for an assessment has been made but not accepted before the child turns 18, and it was unclear whether the child would be in secondary full-time education, • The carer was under pressure not to apply (evidence from a person fully aware of the nature and details of the circumstances, e.g. a social worker or police officer, will be required), • Severe distress or hardship (e.g. caused by a disaster such as fire or flood) delayed lodgement, or • Communication difficulties led to an inability to access information (a result of geographical location, cultural issues, literacy, language difficulties, etc). The exceptional circumstances must relate to the reasons that justify the making of the application after the child's 18th birthday and not to the consequences to the individual of making a late application. Example: M did not make an application to extend the child support assessment prior to child A's 18th birthday. After the child support assessment has ended, M realises that their FTB has been affected and requests that the Registrar consider a late application. The Registrar would refuse the application if there were no exceptional circumstances that justified the application being made after A turned 18. 22 It is readily apparent that the final two paragraphs of the above extract are relevant to [the appellant's] case. [The appellant] realised after Angus's 18th birthday (and after the child support assessment had ended by reason of the operation of the provisions discussed in paragraph 17 above) that his entitlements to family tax benefit were affected – for this reason he sought an extension of the child support assessment past [the appellant's son's] 18th birthday. It is such a situation as is described in the example set out in paragraph 2.5.5. The law concerning the application of government policy, such as that set out in paragraph 2.5.5 of the Child Support Guide, is that the policy should be applied if the Tribunal is satisfied that it is not inconsistent with the law. The Tribunal is so satisfied and is also satisfied that its application is appropriate having regard to the events that have occurred in the present case. The Tribunal is also satisfied that the fact that [the appellant] was unaware that failure to seek an extension of the child support assessment past Angus's 18th birthday would affect him adversely, does not bring the matter into the category of exceptional circumstances – this is so even in light of the fact that no letter was received by him informing him fully of his options. It is also relevant when considering the question of exceptional circumstances that there was no obligation for [the appellant] to be notified of his legal entitlements or options concerning applying for an extension past Angus's 18th birthday. The fact that [the appellant] did not receive advice about his legal rights or entitlements is not a circumstance that is exceptional. 23 In summary, the Tribunal is satisfied that [the appellant] has no reasonable prospect of success in relation to an application to extend the child support assessment concerning Angus beyond Angus's 18th birthday. This is so because no circumstances are demonstrated that would constitute "exceptional circumstances" for the purposes of paragraph 151C(2)(e) of the Assessment Act. The additional factors discussed in paragraphs 14 and 15 concerning extensions of time need not be addressed by the Tribunal. For this reason, the decision under review to refuse [the appellant's] application for an extension of time is correct and is affirmed. (Emphasis in original, footnotes omitted.) The Tribunal specifically found that it had been made clear to the appellant by Maria that he needed to contact the Department only if he "wanted an extension". The "extension" referred to by the Tribunal in that regard being, presumably, an extension to assessments beyond the son's 18th birthday rather than an extension of time to make an application after the son's 18th birthday. It is possible that he misunderstood what he was being told by Maria, but in any event, the findings by the Tribunal were that he had been told by the Department in the conversation with Maria that he could apply to extend the child support assessment past his son's 18th birthday but that he needed only to contact the Department if he wanted an extension: see paragraph [20] of the Tribunal's reasons. 11 The conversation between the appellant and Maria only took place because it was considered important by someone in the Department that a letter be sent to the appellant before his son's 18th birthday and, it may be assumed, that the step was taken of telephoning the appellant on a Saturday afternoon to obtain from him his correct address because an authorised officer in the Department considered it sufficiently important for the letter to reach the appellant. The finding by the Tribunal in those circumstances that the letter had not reached the appellant might have been exceptional circumstances for the purposes of s 151C(2)(e) notwithstanding that the Department had no legal obligation to inform the appellant that any application needed to be made by the time of his son's 18th birthday. The fact that the letter did not reach the appellant may at least arguably have been the foundation of exceptional circumstances (notwithstanding that the Department was not obliged to notify the appellant) because the Department had made a positive decision to notify the appellant in writing before the son's 18th birthday and had informed the appellant that a letter would be sent. 12 The appellant's notice of appeal as filed, however, did not raise as a ground of appeal that the Tribunal had erred in its construction of the words "exceptional circumstances" or that it had erred in the application of the statutory provisions to the facts on the evidence before it. Indeed, the appellant had not conducted his application to the Tribunal on the basis that the facts as they were found by the Tribunal constituted exceptional circumstances for the purposes of s 151C(2)(e) of the Assessment Act. Nor had the appellant conducted the appeal to the Court in those terms. He had relied only in the appeal upon a broad statement of "misfeasance in public office" without apparently understanding what that meant as a matter of law. He did, however, identify facts which he asked the Court to find that could bear upon whether exceptional circumstances had been found (albeit in terms that are less precise and less focused than one might expect if identified by a legal practitioner). The specific findings the appellant sought the Court to make were: 1 That the Registrar Child Support knowingly provided false and misleading documents and information to the Administrative Appeals Tribunal for the Tribunal to make its decision. 2 That the Administrative Appeals Tribunal knowingly failed to give weight to a relevant factor and therefore its decision was Manifestly Unreasonable. Neither fact was expressly directed to the Tribunal's decision that exceptional circumstances had not been found, although the nature of the facts which the appellant asked the Court to find could arguably bear upon the way in which the Tribunal decided the application. The "false and misleading documents and information" said by the appellant to have been provided by the Registrar were explained by the appellant at the hearing to be the incorrect details which the Registrar had for his address. These were elevated in his accompanying affidavit to the description of "fraud", coupled with allegations of breach of privacy and defamation; however, his fundamental point appeared to have been that the incorrect information had resulted in him not receiving the letter which he was told he would receive in circumstances where he claimed to have understood Maria to be telling him that nothing would change if he did nothing. In the end nothing turns upon the additional facts the appellant asked the Court to make and they are not taken into account. 13 It is in that context that it becomes necessary to consider the appellant's application dated 9 December 2016 to amend his notice of appeal. The appellant's proposed grounds of appeal, in contrast to the notice of appeal as filed, does seek to challenge the Tribunal's application of s 151C(2) of the Assessment Act to the facts as found. Whether facts fall within the terms of a statutory provision, properly construed, is a question of law: Collector of Customs (Tas) v Flinders Island Community Association (1985) 7 FCR 205 at 214; Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 394-395; Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287. The fact that the issue may not directly have been raised with the Tribunal does not necessarily prevent it from being raised for the first time on appeal: Repatriation Commission v Warren (2008) 167 FCR 511 at [78]; Hussain v Minister for Foreign Affairs (2008) 169 FCR 214 at [39]-[40]. 14 The respondent opposed the grant of leave to amend the notice of appeal on the ground that the proposed amended notice of appeal was defective and had no prospect of success. The first objection was expressed in the respondent's written submissions in general terms as being that the proposed question of law "does not expressly state a question of law at all" and cannot be accepted. The question of law raised by the proposed grounds of appeal is, in essence, that the Tribunal failed to apply a statutory provision, properly construed, to the facts that were found by the Tribunal: see Hayes v Federal Commissioner of Taxation (1956) 96 CLR 47 at 51; Hope v Bathurst City Council (1980) 144 CLR 1 at 7; Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287; Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 396; Morse v Al-Jubouri [2011] NSWSC 1330 at [53]. 15 The second ground of the Registrar's opposition to the grant of leave to amend the notice of appeal was that the proposed ground of appeal had no prospects of success. That ground requires consideration of the Tribunal's construction of the relevant provision and of the Tribunal's application of that provision, properly construed, to the facts found by the Tribunal. This requires, in particular, consideration of the meaning of the words "exceptional circumstances" as used in the provision and of the application of those words by the Tribunal on the facts found. 16 The Assessment Act does not define "exceptional circumstances" or give to those words a meaning different from their ordinary meaning which may be taken to be "not regularly, or routinely, or normally encountered": Baker v The Queen (2004) 223 CLR 513 at 573, [173]; see also Griffiths v The Queen (1989) 167 CLR 372 at 383; Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd (2003) 135 FCR 206 at 217, [28]; Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13]. The considerations which the Department, and subsequently the Tribunal, are to take into account in deciding whether there are exceptional circumstances in any given case is to be determined by construction of the statute conferring the discretion. In Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505 Kiefel and Bennett JJ said at [71]: […] A relevant consideration in an administrative law sense has a limited meaning. It is one which the decision-maker is bound to take into account in making the decision in question. The factors which the decision-maker is bound to take into account are determined by the construction of the statute conferring the discretion. If they are not stated, they are to be determined by implication from the subject-matter, scope and purpose of the Act: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40 per Mason J. Section 151C of the Assessment Act conferred a discretion to entertain an application made after a child's 18th birthday where there were "exceptional circumstances" justifying the making of an application after the child's 18th birthday. The factors relevant to consider in the exercise of that discretion are not expressly stated, or limited, in s 151C(2)(e) but may be taken to include all relevant and administratively probative matters bearing upon the cause, or reason why, an application was not made before a child's 18th birthday. 17 The Tribunal referred in paragraph [18] of its reasons to the exceptional circumstances requirement in s 151C(2)(e) and in paragraph [19] of its reasons considered what might be raised as exceptional circumstances in this case, saying: Might there be exceptional circumstances in the present case? In this regard, the issues raised by [the appellant] that could constitute exceptional circumstances include the following. First, [the appellant] states emphatically that he did not receive a letter dated 9 March 2015 that the Department suggests was sent to him advising him about his option to seek an extension of the child support assessment past [the appellant's son's] 18th birthday. Second, [the appellant] gave evidence that he was not told about the legal requirement that he submit any application for an extension of the child support assessment past [the appellant's son's] 18th birthday before Angus's 18th birthday. Third, [the appellant] has told the Tribunal and the Department that he was unaware of the fact that a failure by him to apply for an extension past [the appellant's son's] 18th birthday would impact detrimentally upon his entitlements to family tax benefit. [The appellant's] evidence to the Tribunal was clear that the unfortunate loss of family tax benefit entitlements was the reason for his application to extend the child support assessment past [the appellant's son's] 18th birthday. He frankly stated that he does not seek to recover any child support from [the appellant's ex-wife] because she is not in a good financial position to make any payments. The Tribunal's reasons for rejecting these as exceptional circumstances within the meaning of s 151C(2)(e) for the purposes of s 151B are to be found in paragraphs [20] to [22] of its reasons and fail to give any significance to its findings concerning the telephone conversation and that the appellant did not receive the letter which Maria had informed him that he would receive. The Tribunal had accepted that the appellant had not received the letter dated 9 March 2015 which would, presumably, have informed him that any application to extend child support payments had to be made before the 18th birthday of his son. The telephone call initiated by the Department's officer had been, at least in part, to ensure that he would receive a letter which would convey that important information to the appellant in sufficient time to enable the appellant to make an application before his son's 18th birthday if he wished to do so. It may be accepted that the Department had no obligation to inform the appellant of his options to seek an extension past the appellant's son's 18th birthday, but it had specifically telephoned the appellant to ensure that information about his options would reach him at the correct address and that it would reach him before his son's 18th birthday. The Tribunal had affirmatively found that the appellant had asked the officer "whether he had to do anything" and had found that it had been made clear to him that he need only do something if he wanted an extension but, as the Tribunal also found, the appellant "was not told that any application for an extension needed to be made before [his son's] 18th birthday". In that regard the Tribunal rejected a contrary finding which had been made by the Departmental officer when refusing the appellant's application on 23 March 2016. The letter to the appellant from the Department dated 23 March 2016 advising the appellant that his application for an extension of time had been refused had stated that the appellant had been told that he would need to apply "before his son turned 18" (emphasis added) if he wanted to extend the assessment. In contrast the Tribunal found at [20] (see also footnote 9) that the appellant "was not told that any application for an extension of an assessment needed to have been made before" the son's 18th birthday. (Emphasis in the Tribunal's decision). 18 It may be accepted, as stated in the child support guide referred to at [21] of the Tribunal's decision, that exceptional circumstances are not to be found in "the consequences to the individual of making a late application". It may also be accepted that exceptional circumstances are not established by an applicant's ignorance of the provisions and that the Department is not obliged to notify an applicant of the options available under the relevant provisions. Exceptional circumstances may exist, however, where communications between the Department and an applicant explain, or contribute to, the failure by an applicant to make an application within the time required by the statute. The information to be conveyed to the appellant by the letter of 9 March 2015 was not conveyed to him in the conversation between him and the Departmental officer on 7 March 2015. He was told in that conversation, rather, that he would receive a letter which he did not receive. The Tribunal had found the appellant to be a believable witness and had accepted his evidence as credible and the Tribunal accepted that the appellant had not received the Department's letter of 9 March 2015. The Tribunal had listened to the Department's recording of the telephone conversation between the appellant and Maria and had found that he had not been told that an application for an extension had to be made before his son turned 18 years of age but that in response to his question, about whether he had to do anything, he was told only that it was a matter for him to contact the Department if he wanted an extension. It is clear from the Tribunal's finding at [20] that the Departmental response to the appellant's question did not specify that the appellant needed to make that contact before his son's 18th birthday. It follows that the proposed grounds of appeal has prospects of success sufficient for the grant of leave and also for the appeal to be allowed. It is in the Tribunal's findings about the telephone conversation between the appellant and Maria and in the fact that the foreshadowed letter of 9 March 2015 was not received by the appellant that there may be found an explanation for the failure of the appellant to have applied for an extension before his son's 18th birthday and therefore the exceptional circumstances justifying the making of an application after the son's 18th birthday. 19 The grant of leave to allow a party to reopen submissions is exceptional but leave may be granted where justice requires. In Bendigo and Adelaide Bank Ltd v Clout (No 2) [2016] FCA 561 White J summarised at [24]-[25] the principles applicable to an application to reopen a proceeding to make submissions as follows: 24 The Court's power to permit a reopening of submissions is discretionary. Prominent considerations in the exercise of the discretion are the public interest in the finality of litigation and in the efficient disposal of the Court's business. For these reasons, parties are expected to bring forward all their evidence and submissions at the one hearing and the circumstances in which courts allow a reopening of submissions once judgment has been reserved tend to be exceptional: Re Application by the Chief Commissioner of Police (Vic) [2005] HCA 18; (2005) 79 ALJR 881 at [22]. 25 Nevertheless, there are circumstances in which it is appropriate to grant leave. A change in the subject matter of the litigation, new evidence, the publication of a binding or persuasive judgment, the character of the matter on which judgment is reserved, the importance of the issues sought to be raised on the reopening to the just disposition of the proceedings, and the reason for the matters not having been raised earlier may, by themselves or in combination, warrant a favourable exercise of the discretion. This is not intended to be an exhaustive list. The appellant in this case had conducted himself at the hearing courteously without seeking to delay or obfuscate, but had conducted an unfocused appeal which had not identified in legal terms what might have been his substantive legal complaint. The notice of appeal which had been prepared and filed by the appellant was inept and unfocused and failed wholly to identify in legal terms what in lay terms was expressed as a complaint flowing from the events which he maintained had occurred and which the Tribunal found to have occurred. The respondent is correct in submitting that it would not be appropriate for leave to be given to reopen proceedings merely because the Court may have expressed a recommendation that the appellant obtain legal advice. In this case, however, the submissions produced by counsel acting pro bono focus precisely and helpfully the appellant's complaint in a way that meaningfully allows the Court to determine whether the Tribunal erred in its application of the relevant statutory provisions to the facts it found. The appellant in this case should be allowed to reopen submissions, and be given leave to amend his notice of appeal, because it is in the interests of justice that the Court determine the true merits of the dispute. 20 The Registrar seeks the Court to make an additional finding under s 44(7) of the AAT Act if leave to amend was granted. The finding of fact which the Registrar invited the Court to make was that the respondent did send a letter to the appellant after 7 March 2015. The Registrar relied upon an affidavit of Robert Davis dated 10 January 2017 containing a number of exhibits. The additional fact which the Registrar invites the Court to find is consistent with the findings of the Tribunal but the finding is not one which should be made. Section 44(7) of the AAT Act provides: Federal Court may make findings of fact (7) If a party to a proceeding before the Tribunal appeals to the Federal Court of Australia under subsection (1), the Court may make findings of fact if: (a) the findings of fact are not inconsistent with findings of fact made by the Tribunal (other than findings made by the Tribunal as the result of an error of law); and (b) it appears to the Court that it is convenient for the Court to make the findings of fact, having regard to: (i) the extent (if any) to which it is necessary for facts to be found; and (ii) the means by which those facts might be established; and (iii) the expeditious and efficient resolution of the whole of the matter to which the proceeding before the Tribunal relates; and (iv) the relative expense to the parties of the Court, rather than the Tribunal, making the findings of fact; and (v) the relative delay to the parties of the Court, rather than the Tribunal, making the findings of fact; and (vi) whether any of the parties considers that it is appropriate for the Court, rather than the Tribunal, to make the findings of fact; and (vii) such other matters (if any) as the Court considers relevant. Section 44(7) permits the Court to find facts to resolve questions of law properly before the Court but does not extend the Court's jurisdiction to enable the Court to exercise the Tribunal's discretion: Selway v Minister for Infrastructure, Transport, Regional Development and Local Government (2011) 120 ALD 40, [46]; see also Condell v Federal Commissioner of Taxation (2007) 66 ATR 100, [14]. In Rana v Repatriation Commission (2011) 126 ALD 1 the Court explained that s 44 provided a limited scope for the reception of further evidence. At [20] the Court said: […]. The prohibition against the reception of further evidence on the hearing of a s 44 appeal is not though a complete one. There is a limited scope for the reception of further evidence in such an appeal where that evidence tends to prove that the specified question of law should, for a reason given in a specified ground of appeal, be answered in a way that entitles or, as the case may be, disentitles an applicant to the orders sought. The further evidence must, as the Full Court observed in Phillips' Case, have a tendency, if admitted, to demonstrate an error of law. If, for example, the power of an administrative decision-maker or the Tribunal sitting in place of that person was, on the true construction of the legislation conferring that power, only exercisable if a particular jurisdictional fact existed, further evidence which showed that the fact did or did not exist might be admitted on the hearing of a s 44 appeal in the exercise of a judicial discretion. In the present type of case, for example, further evidence which showed that an applicant for a pension had never served or, as the case may be, had in fact served as a member of the Defence Force might fall into this category. In contrast, further evidence which touched on a matter of evaluative judgment on the factual merits of a claim would not be admissible, save perhaps exceptionally for the very limited purpose of underscoring why it was that, in the event that a question of law were answered as an applicant contended, a remitter of the matter to the Tribunal for rehearing would not be an exercise in futility. The respondent's reliance upon the additional facts is not relied upon for the Court to resolve the question of law before the Court but to re-exercise impermissibly the discretion of the Tribunal. 21 Accordingly, the appellant will be given leave to file the amended notice of appeal, the appeal will be allowed and (subject to hearing from the parties about the form of orders to be made) the proceeding will be remitted to the Tribunal for determination. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Pagone. Associate: Dated: 23 February 2017