Copperart Pty Ltd v Federal Commissioner of Taxation

[1993] FCA 462

IN THE FEDERAL COURT OF AUSTRALIA	) )
AUSTRALIAN CAPITAL TERRITORY	)
1 No. ACT G 49 of 1992
DISTRICT REGISTRY	) )
GENERAL DIVISION	)

BETWEEN: DAVID McKNIGHT

Applicant

AND: AUSTRALIAN ARCHIVES

Respondent

MINUTE OF ORDER

JUDGE MAKING ORDER :	Neaves J.
DATE OF ORDER	16 July 1993
WHERE MADE	Canberra

PRINCIPAL REGISTRY

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

THE COURT ORDERS THAT:

1.   The application for an extension of time within which to institute an application by way of appeal from the decision of the Administrative Appeals Tribunal be dismissed.

2.   The applicant pay the respondent's costs of the application.

IN THE FEDERAL COURT OF AUSTRALIA	)
1
AUSTRALIAN CAPITAL TERRITORY	j No. ACT G 49 of 1992
DISTRICT REGISTRY	1
)
GENERAL DIVISION	)

BETWEEN: DAVID McKNIGHT

Applicant

AND: AUSTRALIAN ARCHIVES

Respondent

CORAM: Neaves J.

W: 16 July 1993

REASONS FOR JUDGMENT

An application in the name of David McKnight ("the
applicant") has been made to the Court pursuant to s.44(2A) of

the Administrative Appeals Tribunal Act 1975 (Cth) for an

application to the Court by way of appeal pursuant to s.44(1)	extension of time within which to file and serve an
of that Act from the decision of the Administrative Appeals Tribunal ("the Tribunal") given on 28 July 1992. The Tribunal dec~ded that certain Commonwealth records were exempt from production to the applicant pursuant to s.33 of the Archives
Act 1983 (Cth). Although the application is brought in the
name of the applicant, it is made clear in the affidavit of Richard Coleman sworn on 8 September 1992 and filed in support
of the application that the solicitors for the applicant, Mallesons Stephen Jaques, are instructed not by the applicant but by John Fairfax Group Pty Limited. That company is said to have been the applicant's employer prior to "about the middle of 1990".
It is common ground that the period of 28 days to which s.44(2A) (a) refers as the period within which an appeal under s.44(1) may be instituted expired on 25 August 1992. The application for an extension of time was filed on 10 September 1992. The only material filed in support of that application was the affidavit of M r Coleman to which reference has already been made. Annexed to the affidavit was a copy of the applicant's notice of appeal.
Mr Coleman, in his affidavit, describes himself as the solicitor for the applicant. Paragraph 12 of the affidavit states that the necessity for an extension of tlme was brought about "by the time needed for the applicant to
seeking legal advice". Paragraphs 7-10 of the affidavit read: give proper consideration to all aspects of an appeal and "7. On 28 July, 7, 11, 18 August and 1 September 1992 advice was sought by the applicant and Fairfax from Mallesons Stephen Jaques in relation to the lodging of an appeal against the findings of the Tribunal.

8.  On 1 September 1992 instructions were received by Mallesons Stephen Jaques from Fairfax to prepare a notice of appeal.

9.  On 2 September 1992 Mallesons Stephen Jaques prepared a draft notice of appeal.

10.  On 3 September 1992 Counsel was briefed to settle the draft notice of appeal."

The references in pars 7 and 8 to "Fairfax" are references to
John Fairfax Group Pty Limited.

When the application for an extension of time came on for hear~ng, counsel for the applicant, recognising the inadequacy of the affidavit to explain the delay in instituting the substantive application, sought and was granted leave to supplement the affidavit material by oral evidence.

Mr Coleman then gave evidence supplementing what he had deposed to in his affidavit. The matters of which Mr Coleman could speak of his own knowledge may be summarised as follows :

.	On 28 July 1992 he obtained a copy of the decision of the Tribunal and informed M r Adrian Deamer, described as the Legal Manager of John Fairfax Group	Pty Limited, of the result by telephone. Mr Deamer	informed Mr Coleman that he did not think there
would be an appeal.
.	On 29 July 1992, Mr Coleman discussed the matter with the applicant and separately with counsel.
.	On 3 August 1992, Mr Coleman sent a copy of the Tribunal's reasons for decision to the applicant and to counsel. At about this time Mr Coleman had a discussion with Mr Deamer as to the period within which an appeal could be instituted.
.	On 7 August 1992 the applicant telephoned Mr Coleman and informed him "that he wanted to appeal in this matter". Mr Coleman did not act upon that information but referred the applicant to Mr Deamer

to whom M r Coleman then sent a copy of the

Tribunal's reasons for decision.

. Mr Coleman had no subsequent conversation wrth the

applicant in relation to the matter.

.	On 11 August 1992, Mr Deamer requested Mr Coleman to obtain counsel's opinion as to the prospects of success of an appeal. Mr Coleman was informed that counsel was overseas until 13 August 1992.
.	Mr Coleman had no further communication with Mr Deamer until, on 18 August 1992, Mr Coleman received an oral opinion from counsel concerning an appeal which he communicated to Mr Deamer. He again discussed with Mr Deamer the period within which an appeal could be lodged. He did not communicate counsel's opinion to the applicant.
.	On 1 September 1992, that is to say after the time for appeal had expired, Mr Deamer telephoned him and gave instructions "to go ahead with the appeal".
.	Mr Coleman then made enquiries to obtain a copy of

the schedule to the Tribunal's reasons for decision which he said he had not previously received but which, he was informed, had been sent directly to the applicant.

On 3 September 1992, a draft notice of appeal and a draft of an application for an extension of time were sent to counsel for his consideration.

.	The documents as settled by counsel were filed on 10 September 1992.
Mr Coleman was unable to say whether any discussions

had taken place between the applicant and Mr Deamer. He was not present at any such discussion. Nor was he able to say what, if any, steps Mr Deamer may have taken in relation to the question of appeal apart from the matters to which reference has been made. No evidence was adduced, either by affidavit or orally, from the applicant or Mr Deamer.

The prima facie rule is that proceedings commenced outside the period of 28 days referred to in s.44 (2A) of the Administrative Appeals Tribunal Act will not be entertained. It is for the applicant to satisfy the Court that that rule should, in the circumstances of the case, not be applied. It is for the applicant to show an "acceptable explanation of the delay" and to satisfy the Court that it is "fair and equitable in the circumstancesu to extend the time. These requirements are not to be relaxed simply on the ground that only a short extension of time is sought.

In my opinion, the applicant has failed to provide a satisfactory explanation as to why the notice of appeal was not filed within the time prescribed. No explanation at all is offered in respect of the period between 18 August 1992, when Mr Deamer was informed of counsel's opinion, and 1 September 1992 when instructions "to go ahead with the appeal" were given by him. There is complete silence as to what part the applicant may have played in the matter.

The absence of a satisfactory explanation for the delay is sufficient to dispose of the matter. I should add, however, that two other factors are, I think, of some significance. The first is the nature of the proceedings before the Tribunal. The second is the substant~al doubt that

I entertain whether the issues which the applicant seeks to

have determined by this Court are questions of law.

The application for an extension of time is dismissed. The applicant must pay the respondent's costs of the application.

I certify that this and the preceding 5 pages are a true copy of the Reasons for Judgment herein of the Honourable Mr Justice

Dated: 16 July 1993

Counsel for the applicant : Mr J. Topfer

Solicitors for the applicant : Mallesons Stephen Jaques

Counsel for the respondent : Mr T.M. Howe

Solicitor for the respondent : Australian Government

Solicitor

Date of hearing : 19 October 1992