Erhardt and Australian Securities and Investments Commission

[2018] AATA 4785

Erhardt and Australian Securities and Investments Commission [2018] AATA 4785 (21 December 2018)

Division:TAXATION & COMMERCIAL DIVISION

File Number:           2018/5326

Re:Hardy Erhardt

APPLICANT

AndAustralian Securities and Investments Commission

RESPONDENT

DECISION

Tribunal:Mr A. Maryniak QC, Member

Date of decision:               21 December 2018

Date of written reasons:        14 January 2019

Place:Melbourne

For the reasons given orally at the conclusion of the interlocutory hearing of this matter, the Tribunal refuses the application under section 29(7) of the Administrative Appeals Tribunal Act 1975 for an extension of time to lodge this application for review of a decision.

..................[sgd]......................................................

Mr A. Maryniak QC, Member

Catchwords

PRACTICE AND PROCEDURE – application for extension of time to apply for review
 – delay of one month in lodging application – whether reasonable excuse for delay
 – whether reasonable in all the circumstances to extend time – insufficient evidence to explain delay in lodging application for review – insufficient evidence to explain delay in lodging application for extension of time – application for extension of time dismissed

Legislation

Administrative Appeals Tribunal Act 1975, ss 29(7), 43(2A)

REASONS FOR DECISION

Mr A. Maryniak QC, Member  

14 January 2019

1. At the conclusion of the interlocutory hearing of this matter, the terms of the decision intended to be made and the reasons therefore were stated orally. After the giving of the oral reasons, the Applicant pursuant to subsection 43(2A) of the Administrative Appeals Tribunal Act 1975, requested the Tribunal to furnish him with a statement in writing of the reasons of the Tribunal for its decision.

2. The oral reasons for the decision have been transcribed by Epiq Australia Pty Ltd.  Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

3. An extract of the said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reason for the Tribunal’s decision.

I certify that the following nine paragraphs are a true copy of the reasons for the decision herein of Mr A. Maryniak QC, Member.

.....................[sgd]...............................

Associate

Dated: 14 January 2019

Date of telephone hearing:	21 December 2018
Counsel for the Applicant:	Dr B. Orow
Solicitors for the Applicant:	Oakwood Partners
Counsel for the Respondent:	Ms J. Williams
Solicitors for the Respondent:	Australian Securities and Investments Commission

EXTRACT OF TRANSCRIPT PROCEEDINGS

1. [MEMBER:] This application for an extension of time was first adjourned twice on the request of the applicant by consent and on the previous occasion was adjourned because of an administrative wrinkle in the respondent's end but on that occasion, on 6 December

   
   

   I did give the applicant the opportunity to lodge further evidence if so advised, to support either or both of its applications for an extension of time and a [stay] hearing.

2. I have considered the submissions of the parties and the evidence before the tribunal and in particular the statutory declaration of the applicant declared 13 December 2018 together with hospital records and a relatively brief paragraph report - one paragraph report from a Dr King dated 11 December 2018.

3. The critical period of time as discussed during the hearing for this application is late August through September up to 25 September.  I accept that the applicant has had some difficulties including a hospital visit in early July of this year and it seems that there is pain related depression but until half way through giving this judgment I have now been informed through the applicant's solicitor that he is on Escitalopram which is a recognised antidepressant but there is no evidence of that in the report of Dr King other than to say that he was taking over the counter herbal medication.

4. There is also no evidence that the applicant, despite ongoing depression, has sought assistance from either a psychiatrist or a psychologist but in any event there is insufficient evidence before the tribunal to explain the delay in lodging an application with this tribunal and a delay to lodge the extension of time to lodge an application with the tribunal through the month of September up to 25 September of this year.

5. In the circumstances, the application for an extension of time for making an application for review of decision dated 25 September 2018 is dismissed.

6. DR OROW:  In these circumstances I have instructions that my client will appeal the decision.  I ask the tribunal to stay the effects of the order until the appeal is filed and determined.

7. MEMBER:  Ms Williams?

8. MS WILLIAMS:  It doesn't quite make sense to me, your Honour, if the extension of time application has been dismissed then there is no time in which to lodge the appeal so we think that - we would submit, it may be corrected here, that there would be no jurisdiction for the stay application because there is no appeal on foot.

9. MEMBER:  Well, in any event, regardless of whether there is a jurisdictional point or not, the applicant has had every opportunity to put its best foot forward and put convincing evidence before the tribunal in respect of this matter.  I do not find the evidence before me to be convincing so in such circumstances I don't propose to order anything other than what I have just ordered.  Thank you Dr Orow.