Ball v Deputy Commissioner of Taxation

[2003] FCA 1480

FEDERAL COURT OF AUSTRALIA

Ball v Deputy Commissioner of Taxation [2003] FCA 1480

Federal Court Rules Order 32 r 2

MAXWELL THOMAS BALL v DEPUTY COMMISSIONER OF TAXATION
N 1583 OF 2003

HELY J
1 DECEMBER 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1583 OF 2003

BETWEEN:	MAXWELL THOMAS BALL APPLICANT
AND:	DEPUTY COMMISSIONER OF TAXATION RESPONDENT
JUDGE:	HELY J
DATE OF ORDER:	1 DECEMBER 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The motion is dismissed with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1583 OF 2003

BETWEEN:	MAXWELL THOMAS BALL APPLICANT
AND:	DEPUTY COMMISSIONER OF TAXATION RESPONDENT
JUDGE:	HELY J
DATE:	1 DECEMBER 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. I have before me a notice of motion which was filed on 27 September 2003.  The applicant seeks an extension of time within which to appeal from a decision made by Beaumont J on 18 February 2003, dismissing an application to annul a sequestration order which had been made by a Registrar on 20 December 2002.  That sequestration order was made on the petition of the Commissioner of Taxation and was based upon a judgment debt obtained in the District Court of NSW on 4 March 1996, apparently after a contested hearing.

2. The applicant is in dispute with the Australian Taxation Office (‘the ATO’) in relation to his income tax assessments for the years ended 30 June 1982, 1983, 1984, 1986 and 1987.  Objections were lodged by the applicant to those returns which were disallowed by the Commissioner on 3 February 1995.  The Administrative Appeals Tribunal (‘the AAT’) affirmed the decisions of the Commissioner.  On 28 June 1986 Lindgren J dismissed an appeal from the AAT’s decision.  The assessments are for income tax, they have been the subject of review by the AAT and an appeal from that review has been dismissed.

3. The applicant lodged an affidavit in support of his application on 27 September 2003.  That affidavit does not disclose any explanation for the delay in seeking to appeal from the decision of Beaumont J, nor is it clear to me on reading that affidavit just what the grounds are on which it is said Beaumont J erred in dismissing the annulment application.

4. When the matter came on for hearing this afternoon Mr Carroll of Counsel appeared on behalf of the applicant.  He told me that he had received instructions by means of a phone call from the applicant, received at 12 o'clock today, but his instructions were limited to seeking an adjournment of the notice of motion.  The ground on which he seeks that adjournment is that the applicant is not in a position to instruct him; he suffers from significant health problems which involve cardio-vascular failure leading to brain damage.  Mr Carroll has no evidence to support those instructions and no prior notice was given to the respondent of any intention to apply for an adjournment.

5. Mr Carroll is not in a position to tell me the grounds on which the applicant says that a sequestration order ought not to have been made against the applicant’s estate, nor is he in a position to tell me upon what grounds Beaumont J erred in dismissing the annulment application.  I make those observations not by way of criticism of Mr Carroll but just to record the fact.

6. Counsel for the Commissioner opposes the application for an adjournment on the ground that it is not supported by evidence, that it is an exercise in futility and that it is just a delaying tactic.  In my view, the application for an adjournment should be refused.  As I have said, there is no explanation for the delay in seeking to appeal from the decision of Beaumont J, nor is there any showing of an arguable case that Beaumont J erred in dismissing the annulment application.  In those circumstances, it seems to me, that Mr Quinn’s contention that the adjournment is an exercise in futility is made out, and I decline to accede to it.

7. I have indicated that I refuse the adjournment application.  Mr Carroll has repeated that his instructions were limited to seeking an adjournment, and the adjournment having been refused, he seeks leave to withdraw.  It is appropriate that he should have that leave because he announced his appearance initially on a limited basis.  Therefore, I am left in the position that the applicant is not present, nor so far as the continued prosecution of the motion is concerned, is he represented.  In those circumstances I make an order under Order 32 r 2 of the Federal Court Rules dismissing the motion with costs.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

Associate:

Dated:            11 December 2003

Counsel for the Applicant:	Mr D Carroll
Counsel for the Respondent:	Mr R Quinn
Solicitor for the Respondent:	Australian Taxation Office Legal Practice
Date of Hearing:	1 December 2003
Date of Judgment:	1 December 2003