Birdseye and Inspector General in Bankruptcy - [2002] AATA 1260

DECISION AND ORAL REASONS FOR DECISION [2002] AATA 1260

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S2002/280

GENERAL ADMINISTRATIVE DIVISION          )
           Re      NICHOLAS BIRDSEYE
  Applicant
           And    INSPECTOR GENERAL IN BANKRUPTCY
  Respondent

DECISION

Tribunal Senior Member J.A. Kiosoglous MBE

Date3 September 2002
PlaceAdelaide

Decision      The application for an extension of time is refused.
  (signed)
  J.A.KIOSOGLOUS
  Senior Member
CATCHWORDS
Extension of time application – 2-3 days out of time – reasonableness of excuse for delay – prejudice considered
Administrative Appeals Tribunal Act 1975 ss29(7), 43(2A)
Bankruptcy Act 1996 s139ZA
Hunter Developments Pty Ltd v Cohen (1984) 7 ALD 315

ORAL REASONS FOR DECISION

3 September 2002 Senior Member J.A. Kiosoglous MBE

At the conclusion of the hearing of this application on 3 September 2002 to determine whether or not the Administrative Appeals Tribunal ("AAT") would grant an extension of time for the applicant, Nicholas Birdseye, to lodge an appeal of the decision of the respondent, the Inspector-General in Bankruptcy, dated 12 July 2002, the Tribunal stated orally its decision and reasons for that decision. The applicant represented himself and the respondent was represented by Mr Michael Barr, a delegate of the respondent.
The applicant was informed orally of the decision and the reasons for such at the conclusion of the hearing of the extension of time application. He was further provided with a copy of the Direction made by the Tribunal under subsection 29(7) of the Administrative Appeals Tribunal Act 1975 ("the Act") on 3 September 2002. After service upon the applicant of a copy of the Tribunal's decision, solicitors for the applicant, Iles Selley Lawyers, wrote to the Tribunal by letter dated 25 September 2002 stating that they now represent the applicant and that in order for them to carry out instructions to appeal the Tribunal's decision rejecting the extension of time application they needed to inspect the Tribunal file. By a subsequent letter dated 30 September 2002, the applicant's solicitors requested written reasons for the decision pursuant to section 43(2A) of the Act. Accordingly, the Tribunal provides the following reasons for its decision.
By letter dated 2 July 2002, Mr Barr, in his capacity as a delegate of the respondent, wrote to the applicant advising that he had completed a review of the contribution assessments in respect of his income for the assessment periods. Such review was carried out pursuant to section 139ZA of the Bankruptcy Act 1996 ("the Bankruptcy Act"). In this same letter the applicant was advised that if he was dissatisfied with the decision made by Mr Barr he could lodge an appeal within twenty-eight days of receipt of this letter to the AAT.
The applicant submitted that he probably received the letter on approximately 4 or 5 July. On receipt of the letter, and being well within the 28 day period, the applicant instead of lodging an application to the AAT wrote to Mr Barr on 10 July 2002 after first having made a phone call to and speaking with Mr Barr. He submitted that what he tried to do was to indicate errors of fact in Mr Barr's letter and hoping by this that Mr Barr would amend either his letter or his review. He submitted that he heard nothing and so phoned Mr Barr to expedite the matter. He was told that Mr Barr was on leave and would respond about 30 July 2002. The applicant in the meantime took no further action but waited until he heard from Mr Barr.
Mr Birdseye submitted that he believed that in the telephone discussion with Mr Barr he had been able to clarify the position and Mr Barr could then make the appropriate changes and then reissue the statement. He further submitted that Mr Barr wrote to him by letter dated 30 July 2002 and that this was received some two or three days later being either 2 or 3 August 2002. A few days later the applicant lodged his application for review with the AAT. The application is clearly marked with the AAT date stamp indicating it was lodged with the AAT on 5 August 2002, This indicates that the application was lodged some two to three days out of time.
Mr Birdseye submitted that he did follow up his letter of 10 July to Mr Barr by way of fax with a copy of that said letter on which he alleged he had a handwritten note that says:
"Dear sir, we've not had a reply to out letter of 10 July. We need to know if you are amending your assessment or do we need to apply to the AAT?"

Mr Birdseye further stated that he had a copy of this on his file. In fact Mr Barr stated he had never ever received such handwritten note and when pressed Mr Birdseye stated that he had been unable to find a subsequent note or any verification to say that he had actually sent it.

Mr Birdseye even stated that Mr Barr may be correct and that he (Mr Birdseye) cannot remember what has occurred. He further made the extraordinary claim that he had not tried to say that the handwritten note is correct. He then went on to submit that Mr Barr had been going to find out about another issue as to whether or not he was liable to pay tax for a matter not in his name but in what he described as being another legal entity. His reaction, that is, the lodgement of his appeal to the AAT, according to him was due to finding out that Mr Barr could not amend the assessment.
Mr Birdseye was asked by the Tribunal if he had ever had other matters before the Tribunal and of his familiarity with the requirements of the Tribunal. He stated that he had had other matters before the Tribunal and it was for this reason that he acted quickly after receipt of the letter of 30 July.
Mr Barr in his submissions stated that there was not much more for him to add to what he had set out in his letter of 12 August 2002 to the Tribunal wherein is set out the reasons for the respondent's opposition to the application for the extension of time. He was adamant that he told Mr Birdseye in a telephone conversation on or about 15 July 2002 that he was not able to change his decision. He further submitted that also during that telephone call there had been conversation on the issue of tax losses. He told Mr Birdseye that this was not relevant but that he would still write to him which he did on 30 July reiterating what he had previously told Mr Birdseye.
Mr Barr submitted that Mr Birdseye was well aware that he had 28 days from receipt of the decision dated 2 July 2002 to lodge an appeal with the AAT irrespective of anything that happened subsequent to the receipt of that letter. He further submitted that Mr Birdseye was always aware that the 28 days was "running", and that he had also told Mr Birdseye on 15 July that it was his view that the decision could not be changed.
As a result of it being put by the Tribunal to Mr Birdseye that after his telephone conversation with Mr Barr on or about 15 July 2002 he did not proceed to lodge his application because he was waiting to receive confirmation in writing, Mr Birdseye stated that he was waiting to hear from Mr Barr as to whether or not he would be willing to adjust or not adjust what Mr Birdseye believed to be pure mistakes of fact. Mr Birdseye further stated that he thought Mr Barr would go away and think about it and then come back to him with an answer. Mr Birdseye also stated that depending on the answer he would decide if he had to apply to the AAT. It was put to him that Mr Barr stated that he did tell Mr Birdseye during the telephone conversation that he was not going to be able to change his decision.
Mr Birdseye stated that as a result of the telephone call he had understood that Mr Barr was uncertain and would investigate the situation and then get back to him. It was then put to Mr Birdseye by the Tribunal that the matters for which he sought clarification could have been resolved and discussed at any time and that he should have taken measures to protect himself by complying with the requirements of the Act, and lodging his application within the stipulated twenty-eight days. Mr Birdseye stated that he understood this but that he tried to do things on the basis of cooperation.
It was put to Mr Birdseye that he should have lodged his application with the Tribunal within the twenty-eight days and then continued to try and sort out these other matters with Mr Barr. Mr Birdseye responded that he had tried to do it the way he did in an endeavour to keep his costs down. He further stated that he does not have a lawyer acting for him, as the costs could end up being quite high. Mr Birdseye also stated that he did not have legal representation as he was attempting to do the task himself as he considered this to be the easiest path to take.
Mr Barr further submitted that during the telephone conversation of 15 July 2002 he did convey to Mr Birdseye that it was his view that he could not alter the decision as sought by Mr Birdseye. He also stated that he did say to Mr Birdseye that this would be confirmed in writing, which was done. Notwithstanding this, he was of the view that Mr Birdseye had been put on notice then that if he wanted to proceed then Mr Birdseye should have lodged his application with the Tribunal.
On the submissions of both Mr Birdseye and Mr Barr, as set out herein, it was quite clear to the Tribunal, and this was conveyed to the applicant, that he could have lodged his application but did not do so. Despite his knowledge from previous experience in dealings with the Tribunal he chose not to lodge an application but rather to try to discuss the matter with the respondent through Mr Barr. He failed in that he wanted, in an attempt to save money, to deal with the matter as he deemed appropriate and not to lodge the application and then deal with Mr Barr. The Tribunal was satisfied that Mr Birdseye did not take the precaution of protecting himself. Above all he failed to provide any acceptable or reasonable explanation as to why his application for an extension of time should succeed. In fact when this was put to Mr Birdseye his response was: "well, I don't know any grounds."
The tribunal is empowered by subsection 29(7) of the Act to extend the time for the making of an application to this Tribunal. That is a discretionary power. In exercising its discretion the Tribunal must take into account all relevant considerations as applied in Hunter Developments Pty Ltd v Cohen (1984) 7 ALD 315 at 320.
The applicant is not a person who is unfamiliar with the requirements of the Tribunal. On the basis of what was put to the Tribunal, the Tribunal cannot consider that the explanation offered for the delay is reasonable or acceptable, and so finds.
Turning briefly to the issue of prejudice, no submissions on this point were put to the Tribunal by either Mr Birdseye or Mr Barr. From the overall lack of evidence presented by both sides as to the potential prejudice that might be suffered by either Mr Birdseye or the respondent, the Tribunal concludes that no prejudice would result from the decision of the Tribunal.
Accordingly, for the reasons given, the Tribunal, being satisfied that the applicant has not provided an acceptable or reasonable explanation for the delay in making the application, decides not to grant an extension of time pursuant to section 29(7) of the Act.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J.A. Kiosoglous MBE
Signed:   (signed)
  John Howell, Associate
Date/s of Hearing  3 September 2002
Date of Decision  3 September 2002
Counsel for the Applicant        In person
Solicitor for the Applicant         -
Counsel for the Respondent    Mr Michael Barr
Solicitor for the Respondent    -