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: 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…
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- Case
- [2017] FCA 1105
- Decision Date
CaseChat Overview and Summary
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
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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