Graphic Power Pty Limited v Commissioner of Taxation

[2005] FCA 1618

FEDERAL COURT OF AUSTRALIA

Graphic Power Pty Limited v Commissioner of Taxation [2005] FCA 1618

PRACTICE AND PROCEDURE – application for extension of time to file and serve a notice of appeal from a decision of the Administrative Appeals Tribunal – no point of law or principle

Peczalski v Comcare (1999) 58 ALD 697 referred to

GRAPHIC POWER PTY LIMITED v COMMISSIONER OF TAXATION
NSD 1546 OF 2005

TAMBERLIN J
SYDNEY
1 NOVEMBER 2005

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1546 OF 2005

BETWEEN:	GRAPHIC POWER PTY LIMITED APPLICANT
AND:	COMMISSIONER OF TAXATION RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	1 NOVEMBER 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

The application for an extension of time to file and serve a notice of appeal is dismissed with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1546 OF 2005

BETWEEN:	GRAPHIC POWER PTY LIMITED APPLICANT
AND:	COMMISSIONER OF TAXATION RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	1 NOVEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for an extension of time within which to appeal from a decision of a Senior Member of the Administrative Appeals Tribunal given on 21 July 2005.

2. The appeal was lodged approximately 11 days out of time on 31 August 2004.  In support of the application, the applicant has filed an affidavit sworn on 26 September 2005 and an amending affidavit sworn on 5 October 2005.

3. The first ground on which the applicant relies is that the decision of the Tribunal did not consider her mitigating personal circumstances and that she is the sole supporter of her two children.

4. In the decision of the Tribunal at [28], the Tribunal member adverts in general terms to the circumstances of the applicant and finds that her circumstances and conduct do not justify any remission of the penalties imposed and that it is not appropriate in this case to remit any penalties.

5. The respondent has directed me to material submitted by it to the Tribunal which, as I understand it, sets out the mitigating circumstances which are relied on by the applicant.  In the circumstances described, I do not consider that there is any substance in the applicant’s statement that there was no consideration by the Tribunal of her mitigating circumstances and accordingly this ground fails.

6. The relevant principles in relation to the granting of an extension of time, albeit in a different context, were considered by Finn J in Peczalski v Comcare (1999) 58 ALD 697. His Honour referred to the factors governing the granting of an extension of time and held that, in that case, the factors militated against granting an extension of time.

7. In the present case, the applicant has given no explanation for the delay of 11 days but no prejudice is claimed by the respondent in relation to the 11 days themselves.  Two main considerations are relied on by the respondent. 

8. The first is that none of the shortfall of $47,901 out of which this application arises has been paid.  The applicant says that she has paid a small amount in the order of $2,000 but she does not have any records in relation to this.  Even accepting the unverified evidence of the applicant, it is common ground that there is an amount in excess of $45,000 which has not been paid.  This is a relevant matter to take into account and I do so in considering the appeal.

9. The second consideration which is of significance is the submission that the appeal is futile.  This turns on the statements in the applicant’s affidavit and the evidence which has been filed in support of the application for an extension of time.  In my view, there is nothing demonstrated or indicated in the applicant’s affidavit, which is in very brief form, that would support the application for an extension of time in such a way as to indicate that there is any substance or reasonable argument or prospect of success in relation to the appeal.  Accordingly, I accept the submission of the respondent that an appeal would have no real prospects of success in this matter and that it would be futile to pursue it further. 

10. In those circumstances, although the extension sought is a small one, I consider that, having regard to the above considerations, the application should be dismissed with costs and I so order.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated:             9 November 2005

The Applicant appeared in person.
Counsel for the Respondent:	K C Morgan
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	1 November 2005
Date of Judgment:	1 November 2005