Douglass v Administrative Appeals Tribunal - [2017] FCA 1105

FEDERAL COURT OF AUSTRALIA
Douglass v Administrative Appeals Tribunal [2017] FCA 1105

Application for extension of time to appeal from: Administrative Appeals Tribunal (oral decision, Ms G Lazanas, 12 May 2017)

File number: NSD 1069 of 2017

Judge: GRIFFITHS J

Date of judgment: 18 September 2017

Catchwords:
TAXATION – interlocutory application for an extension of time from a decision of the Administrative Appeals Tribunal to commence an appeal – whether a decision to decline to require documents under s 37(2)of the AAT Act is a final decision or an interlocutory decision – whether proposed appeal would be incompetent under s 44(1) of the AAT Act

Held: interlocutory application dismissed, with costs

Legislation:
Administrative Appeals Tribunal Act 1975 (Cth) ss 37, 44, 36D

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Income Tax Assessment Act 1997 (Cth) s 87.18

Judiciary Act 1903 (Cth) s 39B

Taxation Administration Act 1953 (Cth) s 14ZZF

Cases cited:
APRA v VBN [2005] FCA 1868

Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; 213 CLR 543

Director-General of Society Services v Chaney [1980] FCA 108; 47 FLR 80

Director-General of Social Services v Hales [1983] FCA 81; 47 ALR 281

Kennedy v Administrative Appeals Tribunal [2008] FCAFC 124; 168 FCR 566

Kowalski v Repatriation Commission [2009] FCAFC 107; 259 ALR 444

Mahaffy v Administrative Appeals Tribunal [2015] FCA 251

Yao v Secretary, Department of Education, Employment and Workplace Relations [2010] FCA 18

Date of hearing: 18 September 2017

Registry: New South Wales

Division: General Division

National Practice Area: Taxation

Category: Catchwords

Number of paragraphs: 28

Counsel for the Applicant: Mr R Niemann

Solicitor for the Applicant: Christopher Levingston and Associates

Counsel for the Second Respondent: Mr M O’Meara

Solicitor for the Second Respondent: Australian Government Solicitor

ORDERS

NSD 1069 of 2017

BETWEEN:
RODERICK GERRARD DOUGLASS

Applicant

AND:
ADMINISTRATIVE APPEALS TRIBUNAL

First Respondent

COMMISSIONER OF TAXATION

Second Respondent

JUDGE:

GRIFFITHS J

DATE OF ORDER:

18 SEPTEMBER 2017

THE COURT ORDERS THAT:
1.The application for an extension of time dated 28 June 2017 is dismissed.
2.The applicant pay the second respondent’s costs, as agreed or assessed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
GRIFFITHS J:

The applicant seeks an extension of time to commence an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act).
For the following reasons time will not be extended. The applicant’s proposed appeal is misconceived and is beyond the scope of s 44 of the AAT Act.
Summary of background matters
The decision the subject of the application for an extension of time is a decision of the Administrative Appeals Tribunal (AAT) declining the applicant’s application for an order which would have required the Commissioner of Taxation (the Commissioner) to produce documents under s 37(2) of the AAT Act. The applicant had sought to compel the Commissioner to provide…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] FCA 1105
Decision Date: 18 September 2017

CaseChat Overview and Summary

In the case of Douglass v Administrative Appeals Tribunal, the applicant sought an extension of time to appeal a decision of the Administrative Appeals Tribunal (AAT) declining to order the Commissioner of Taxation to produce documents under section 37(2) of the Administrative Appeals Tribunal Act 1975 (AAT Act). The applicant's application was made in the context of a review of amended assessments of his liability to pay taxation and penalties. The AAT had refused the application on the basis that the applicant had failed to identify particular documents that may be relevant to the AAT's review of the objection decision. The applicant argued that he was unable to file the online application within the required timeframe due to financial constraints, but this was unsuccessful. The court was required to determine whether the AAT's decision declining to order the production of documents was a final decision or an interlocutory decision, and whether the applicant's proposed appeal was competent under section 44(1) of the AAT Act.

The court found that the AAT's decision declining to order the production of documents was not a final decision but rather an interlocutory decision, and therefore not appealable under section 44 of the AAT Act. The court relied on the decision of Kennedy v Administrative Appeals Tribunal, which held that section 37(2) of the AAT Act was not a general discovery provision and did not provide a basis for a fishing expedition. The court held that the applicant's proposed appeal was misconceived and beyond the scope of section 44 of the AAT Act. The court also noted that the applicant's application for an extension of time was made after the 28-day period had expired, and that the applicant had failed to demonstrate any exceptional circumstances that would warrant an extension of time.

The court dismissed the applicant's interlocutory application for an extension of time, with costs. The court held that the AAT's decision declining to order the production of documents was not a final decision, and therefore not appealable under section 44 of the AAT Act. The court also held that the applicant's proposed appeal was misconceived and beyond the scope of section 44 of the AAT Act. The court found that the applicant's application for an extension of time was made after the 28-day period had expired, and that the applicant had failed to demonstrate any exceptional circumstances that would warrant an extension of time. The court ordered that the application for an extension of time be dismissed, with costs.

Orders

Orders of the court

1. The application for an extension of time dated 28 June 2017 is dismissed.

2. The applicant pay the second respondent’s costs, as agreed or assessed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

For the following reasons time will not be extended. The applicant’s proposed appeal is misconceived and is beyond the scope of s 44 of the AAT Act. Summary of background matters The decision the subject of the application for an extension of time is a decision of the Administrative Appeals Tribunal (AAT) declining the applicant’s application for an order which would have required the Commissioner of Taxation (the Commissioner) to produce documents under s 37(2) of the AAT Act. The applicant had sought to compel the Commissioner to provide to the Tribunal any documents held by him concerning the following matters:(a)whether there was a relevant custom or practice in the matters identified in the three paragraphs in s 87.18(4) of the Income Tax Assessment Act 1997 (Cth) (the ITA Act); and(b)if there was such a custom or practice, what it was. The application under s 37(2) was made in the context of review proceedings in the AAT concerning the applicant’s challenge to amended assessments of his liability to pay taxation and penalties. The application was refused by the AAT on 12 May 2017. The terms of the Tribunal’s decision were simply that:For the reasons given orally at the conclusion of the interlocutory hearing on 12 May 2017 the Applicant’s application made under section 37(2) of the Administrative Appeals Tribunal Act 1975 is refused. A copy of the transcript dated 12 May 2017 was annexed to the applicant’s outline of submissions in this Court. The AAT’s reasons for rejecting the application under s 37(2) may be summarised as follows. First, although s 37(2) provides a safeguard against a decision-maker who does not lodge all relevant documents as required by s 37(1), the applicant had failed to identify particular documents or a particular class of documents which may be relevant to the AAT’s review of the objection decision. Secondly, the statutory provision required the Tribunal to be satisfied on the basis of the matters advanced by the applicant that there are particular documents or documents in a particular class of documents that may be relevant. Section 37(2) was not a general discovery provision nor did it provide a basis for a fishing expedition, citing Kennedy v Administrative Appeals Tribunal [2008] FCAFC 124; 168 FCR 566 (Kennedy). Thirdly, the AAT accepted that it was sufficient that the documents “may be relevant” in the sense that they may shed light on the issues that will be reviewed in the substantive proceedings, but s 37(2) operates by reference to particular documents or to a particular class of documents. The application for an extension of time The applicant requires an extension of time in circumstances where he contends that he initially sought to review the AAT’s decision by an online application before the 28 days expired. He said that the online application required him to pay a filing fee but that he was unable to do so because he is impecunious. A successful application for a waiver of the filing fee was made to the Federal Court Registrar, however, the delay in determining that application meant that the 28 day period had expired.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Having regard to all these matters, I do not view Kennedy as authority for the proposition that a decision under s 37(2) of the AAT Act is capable of being challenged in a s 44 appeal in advance of the AAT making an ultimate or final decision in the substantive proceeding. Conclusion For these reasons, the application for an extension of time will be dismissed, with costs.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Application for extension of time to appeal from:	Administrative Appeals Tribunal (oral decision, Ms G Lazanas, 12 May 2017)
File number:	NSD 1069 of 2017
Judge:	GRIFFITHS J
Date of judgment:	18 September 2017
Catchwords:	TAXATION – interlocutory application for an extension of time from a decision of the Administrative Appeals Tribunal to commence an appeal – whether a decision to decline to require documents under s 37(2)of the AAT Act is a final decision or an interlocutory decision – whether proposed appeal would be incompetent under s 44(1) of the AAT Act Held: interlocutory application dismissed, with costs
Legislation:	Administrative Appeals Tribunal Act 1975 (Cth) ss 37, 44, 36D Administrative Decisions (Judicial Review) Act 1977 (Cth) Income Tax Assessment Act 1997 (Cth) s 87.18 Judiciary Act 1903 (Cth) s 39B Taxation Administration Act 1953 (Cth) s 14ZZF
Cases cited:	APRA v VBN [2005] FCA 1868 Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; 213 CLR 543 Director-General of Society Services v Chaney [1980] FCA 108; 47 FLR 80 Director-General of Social Services v Hales [1983] FCA 81; 47 ALR 281 Kennedy v Administrative Appeals Tribunal [2008] FCAFC 124; 168 FCR 566 Kowalski v Repatriation Commission [2009] FCAFC 107; 259 ALR 444 Mahaffy v Administrative Appeals Tribunal [2015] FCA 251 Yao v Secretary, Department of Education, Employment and Workplace Relations [2010] FCA 18
Date of hearing:	18 September 2017
Registry:	New South Wales
Division:	General Division
National Practice Area:	Taxation
Category:	Catchwords
Number of paragraphs:	28
Counsel for the Applicant:	Mr R Niemann
Solicitor for the Applicant:	Christopher Levingston and Associates
Counsel for the Second Respondent:	Mr M O’Meara
Solicitor for the Second Respondent:	Australian Government Solicitor

JUDGE:	GRIFFITHS J
DATE OF ORDER:	18 SEPTEMBER 2017