Legge Holdings Pty Ltd v Commissioner of Taxation

[1990] FCA 304

Re: LEGGE HOLDINGS PTY LTD and ANOR
And: COMMISSIONER OF TAXATION
No. N G604 of 1989
FED No. 304
Practice and Procedure

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Lockhart J.(1)

CATCHWORDS

Practice and Procedure - taxation appeals from the Administrative Appeals Tribunal - filing fees - whether more than one filing fee is payable when appealing from a Tribunal decision related to objections to more than one assessment.

Administrative Appeals Tribunal Act 1975: s. 44.

Income Tax Assessment Act 1936: Part V.

Federal Court of Australia Act 1976: s. 60.

Federal Court of Australia Regulations: sub-regs. 2(1), 2(4), and Schedule para. 3A.

HEARING

SYDNEY

#DATE 23:3:1990

ORDER

1. Further compliance with the Federal Court Rules be dispensed with and the time for the filing and serving of notices of appeal from the decisions of the Administrative Appeals Tribunal in matters NT87/3585/3586/3597 and NT87/4322 be extended up to and including 19 April 1990.

2. There be no order as to the costs of today's proceedings.

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

JUDGE1

This application raises a point of importance to litigants in this Court, in general, and to taxpayers seeking to appeal to the Court from decisions of the Administrative Tribunal pursuant to s. 44 of the Administrative Appeals Tribunal Act 1975, in particular. The short question is whether one or more than one filing fee is payable by an appellant from a decision of the tribunal where the subject matter of the proceeding before the tribunal was more than one reference to it by the Commissioner from a decision or decisions of the Commissioner disallowing objections of taxpayers under the Income Tax Assessment Act 1936.

1. In this case there are two applicants, Legge Holdings proprietary Limited and Legge Holdings Staff Superannuation Fund. I call them applicants, rather than appellants, because, although it is in the nature of an appeal, it is within the Court's original jurisdiction.

2. There are three years of income involved, but there were four assessments by the Commissioner, four objections against the disallowance of objections by the Commissioner and, in essence, four sets of proceedings before the Tribunal.

3. The Tribunal took the sensible course of hearing all four matters together, notwithstanding that they involved two separate taxpayers. Although the taxpayers are separate, they are, nevertheless closely related. The Tribunal decided that the determinations of the Commissioner upon the objections under review of both applicants would be confirmed.

4. The Tribunal delivered one set of reasons for decision, but they were entitled in all four matters. The formal decision of the Tribunal, as recorded in the record is:
   

"Decision: the Tribunal affirms the decisions under review."

1. The applicants then lodged one notice of appeal numbered G604 of 1989 purporting to be a notice of appeal from the decision of the Tribunal, to which I have already referred, but in fact relating to both applicants and covering the three years of income, inherent in which are the four separate assessments and notices of objection.

2. The Registrar has referred to the Court the question whether that notice of appeal has sufficiently constituted the relevant appeal or appeals, or whether there should be separate notices of appeal on the assumption that there are four separate matters requiring the payment of four separate filing fees, each of $500.

3. One must commence with s. 60 of the Federal Court of Australia Act 1976 which empowers the Governor General to prescribe the fees to be paid in respect of proceedings in the court. The Federal Court of Australia Regulations have been made by his Excellency pursuant to that power. The relevant regulation is regulation 2 which, so far as material, provides as follows:
   

"2(1) Subject to this regulation, the fees payable in respect of proceedings in the Court or the service or execution of the process of the Court by officers of the Court are the fees respectively specified in the Schedule in respect of the matters in relation to which they are so specified."

1. The schedule provides, in paragraph 3A, as follows under the heading "Fees to be taken in the registry of the Court":
   

"3A. On filing a notice of appeal instituting an

appeal from a decision of the Administrative

Appeals Tribunal, $500."

1. There is some amelioration granted to appellants by subregulation 2(4), which empowers the Registrar or a District Registrar of the Court to issue a certifiate to the person who would otherwise be required to pay the fee certifying, amongst other things, that payment of the fee would impose hardship on that person. That appears to be the only power to waive payment of the prescribed fee.

2. The question is to identify the relevant proceeding or proceedings in this court for the purposes of the statutory provisions to which I have referred. It was submitted on behalf of the taxpayers that, although there are four separate assessments and four separate procedures of objection and disallowance of objection and references to the Tribunal, they, in effect, merged into one proceeding before the Tribunal because of the nature of the proceeding before the Tribunal, namely, the hearing of all matters together, and the form of the Tribunal's order, to which I have already referred. Hence, so it is said, it is correct that there is but one appeal to this Court from the one decision of the Tribunal which affirmed the Commissioner's decisions under review before the Tribunal.

3. The matter cannot be resolved by fine considerations of textuality of the Tribunal's reasons or the form of its order. It must be resolved as a matter of substance. I must confess to having some sympathy for the taxpayers and other appellants in circumstances such as the present where matters are closely related to each other. But I find the conclusion inescapable that in matters involving taxation appeals under Part V of the Assessment Act, once the Commissioner issues his assessment and disallows objections of taxpayers thereto, the procedure for review for which the Assessment Act provides necessarily sets in train a separate proceeding in respect of each reference to the tribunal or to this Court if it goes direct to this Court from the Commissioner.

4. The powers of the Tribunal and those of the Court are necessarily related directly to the decisions of the Commissioner which are under review. The Court has power, not only to dismiss an appeal or allow it, but to set aside relevant decisions of the Commissioner. It seems to me that although matters may be conveniently heard together before the Tribunal or this Court, or both, there are, in essence, as many appeals as there are references from the Commissioner's initial decisions disallowing the objections.

5. It may be convenient for tribunals and courts to encapsulate a multiplicity of appeals in one document, but the proceedings before the Court take their colour and character from the initial act of the Commissioner in disallowing objections, and they do not change in character.

6. Accordingly, I have come to the conclusion that in this case there should have been four separate notices of appeal from four separate decisions of the Tribunal and four separate filing fees paid. The fact that the notice of appeal appears to have been accepted in the New South Wales District Registry of the Court, together with the one fee does not, in my view, alter the legal character of the appeals. Accordingly, in my view, the applicants will have to file four fresh notices of appeal with four filing fees. However, the filing fee already paid, although now part of consolidate revenue, would necessarily be treated as credited towards one of the filing fees payable henceforth.

7. That also leaves the question, assuming the applicants wish to prosecute their appeals in this Court, of what should happen, given that the appeals are out of time.

8. Mr Lichtenberger who appears on behalf of the two applicants asks for an order under para. 44(2A)(a) of the Administrative Appeals Tribunal Act extending the time within which the two applicants may appeal to this Court from the decisions of the Tribunal. The application is not opposed and it is obviously a proper case in which to grant it.

9. Accordingly, the Court orders that further compliance with the Federal Court Rules be dispensed with and that the time for the filing and serving of notices of appeal from the decisions of the Administrative Appeals Tribunal in matters NT87/3585/3586/3587 and NT87/4322 be extended up to and including 19 April 1990. There shall be no order as to the costs of today's proceedings.