Madner, P. v The Commissioner of Taxation of the Commonwealth of Australia

[1988] FCA 50

IN THE FEDERAL COURT OF AUSTRALIA	)
VICTORIA DISTRICT REGISTRY	) No. VG243 of 1987
GENERAL DIVISION	1

BETWEEN: PETERMADNER

Applicant

m: THE COMMISSIONER OF

TAXATION OF THE

coMMONWEA.LTH OF AUSTRALIA

Respondent

\.

11 February, 1988

THE COURT ORDERS THAT:

1. The time withln which the applicant's request to refer

the respondent's decision on the applicant's oblection

against the assessment of which notice was numbered

240912/002 m respect of the year ended 30 June 1980 may

be lodged with the respondent be extended until 14

August 1987.

240911/005 in respect of the year ended 30 June 1983 may

2. The time within which the applicant's request to refer

the respondent's decision on the applicant's objection

agalnst the assessment of which notice was numbered

240913/005 in respect of the year ended 30 June 1981 may

*be lodged with the respondent be extended until 14

August 1987.

3. The time within which the applicant's request to refer

the respondent's decision on the applicant's objection

against the assessment of which notice was numbered

240913/004 in respect of the year ended 30 June 1982 may

be lodged with the respondent be	extended until	14
August 1987.

4. The time within which the applicant's request to refer

the respondent's decision on the applicant's objection

against the assessment of which notice was numbered

L .

be lodged with the respondent be	extended until	14
August 1987.

5. The time within which the applicant's request to refer

the respondent's decision on the applicant's objection

against the assessment of which notice was numbered

240911/004 in respect of the year ended 30 June 1984 may

be lodged with the respondent be extended until 14

August 1987.

6. The time within which the applicant's request to refer

the respondent's decision on the applicant's oblection

against the assessment of which notice was numbered

240911/003 in respect of the year ended 30 June 1985 may

be lodged with	the respondent	be	extended until	14
August 1987.

7.	The respondent's	costs of the	proceeding be paid by the
applicant.

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

IN THE FEDERAL COURT OF AUSTRALIA	)
VICTORIA DISTRICT REGISTRY	) NO. VG248 OF 1987
GENEFfAL DIVISION	)

BEIWEEN: PETERWNER

Applicant

m: THE COMMISSIONER OF

TAXATION OF THE

COMMONWEALTH OF AUSTRALIA

Respondent

CORAM :	Jenkinson J.
U:	11 February, 1988

REASONS FOR JUDGMENT

Appllcatlons that requests to refer decislons on objections to assessments of income tax be treated as having been lodged within time.

On a particular day the applicant's tax agent lodged

with the respondent the applicant's objection against each of six

assessments of his income tax, in respect of the years ended	30th
June 1980, 1981, 1982, 1983, 1984 and 1985.	Written notice of the

decision disallowing the objection in respect of each year was served on or about 30 May 1987. Section 187 of the Income Tax Assessment Act 1936 allowed the applicant 60 days after service of

each notice as the period within which he might lodge with the

respondent, in writing, either a request to refer the decision to

the Administrative Appeals Tribunal or a request to refer the

decision to this	Court.	By a single document the tax agent lodged
requests to refer	the six decisions to this Court	on 14 August

1987, several weeks after the expiration	of that	period of	60
days.	Ihe agent sent with	that document another document	which

included the following:

"Application i s hereby made for an extension

of tlme to lodge the attached Appeals for the

years ended 30th June, 1980 to 1385

inclusive. "

The resondent sent the latter document to this Court.

Sub-sections ( 2 ) and (3) of 6.188 of the Income Tax

Assessment Act 1936 provide:

" ( 2 ) Where the period for the lodgment by	the
taxpayer of a request under section	187 has

ended, the taxpayer map, notwithstanding that writing asking that the request be treated as having been duly lodged.

the period has ended, send the request to the

(3) An application under sub-section (1) or

( 2 ) shall state fully and In detall the circumstances concerning, and the reasons for,

the failure by the taxpayer to lodge the

oblectlon or request as requlred by this Act."

Sectlons 188B and 189 provide:

"188B(1) Where the Commissioner receives	an
application under	sub-section 188(2), the

Commissioner shall, as soon as practicable -

(a)	if the application relates to a request to refer a decision to the Tribunal - send the application to the Tribunal; or
(b)	if the application relates to a
request to refer a decision to the
Federal Court - send the application to that Court.

. ( 2 ) The sending of an application to the

Tribunal under paragraph (l)(a) shall, for the

purposes of the Administrative . Appeals

Tribunal Act 1975. be deemed to constitute the

making by the taxpayer concerned of an

application to the Tribunal to extend the time

within which the request	may	be lodged	with
the Commissioner.

( 3 ) The sending of an application to the

Federal	Court	under	paragraph	(1)	(b)
constitutes	the	making	by	the	taxpayer

concerned of an applicatlon to that Court	to
extend the time within which the request	may
be lodged with the Commissioner.

( 4 ) The Tribunal or the Federal Court, as

the case may be,	may grant or refuse the
application.

(5) applicatlon an under Where

sub-srctlon 188(2) has been granted, the taxpayer shall, for the purposes of this Part, be treated as having duly lodged the request

to which the application	relates."
"189(1) Where a taxpayer duly	lodges, or is
to be treated as having duly	lodged, a request

under section 187, the Commissioner shall

comply with the request.

( 2 )	The	referral of a decision on an
objection	to	the Tribunal shall, for the

purposes of the Administrative	ARRealS
Tribunal Act 1975, be deemed to constitute the
making by the taxpayer	of an applicatlon to

the Tribunal for review of the decislon.

( 3 )	The referral of a	decision on an
ob~ectlon to	the Federal Court constitutes	the
instituting by	the taxpayer concerned	of an

appeal against the	decision."
The document from which I have quoted was in	my opinion

such an application as sub-section 188(2) comprehends by the

phrase "an application in writing asking that the request be

treated as having been duly lodged", notwlthstanding that the

document refers not to a single request, but to six requests.

(See Acts Interpretation Act 1901, s.23(b).)

The word "appllcation" in s.188B is in my opinion used

in two senses. In sub-sectlon lSEB(1) and where It first occurs

in each of the two succeeding sub-sections the word is to be

understood as lndlcating the document which has been sent to the

Commissioner in pursuance of the provision made by sub-section

1 8 8 ( 2 ) . In sub-section 188B(4) and where it secondly occurs in

each of the two preceding sub-sections the word is to be

understood as indicatlng the taxpayer's proceeding, in the

Tribunal or in this Court as the case	may be, for the extension of
time which those sub-sections	contemplate.

So to understand the usage of the word "appllcation" in

s.188B is to be left with an incongruous usage of the word ln

sub-section	188B(5).	But that difficulty	does not, I think,
justify the discarding	of the construction I have	suggested.	I

prefer to allow to the same phrase, "an appllcation under

sub-section 188(2)", one meaning in sub-section 188B(1) and

another meaning in sub-section 188B(5).

If, as I think, it be a piece of paper which the

Commissioner is directed by s . l E M B ( l ) ( b ) to send to this Court,

but the institution	of a proceeding in the Court which his
compliance with the direction effects, there is	in my opinion no

difficulty in conceiving that the sending	of the piece of	paper
may effect the institution	of more than	one proceeding In the

Court if the plece of paper relates to more than one request to

refer a decision. In this case the sending by the respondent of the document from which I have quoted in my opinion constituted

the making by the applicant of	six applications to the Court, each
appllcatlon being for	an extension of the time within which the

request to refer the respondent's declslon on the appllcant's the present kind is ordained, is in the slngular, like the
objection against one of the six assessments may be lodged wlth

the respondent. The verbiage of Division IV of Order 5ZA of this

statutory verbiage I have quoted. But, as in the case of the

statute, the plural sould be	understmd	tu be lncluded (sec the
Acts Interpretation Act	1901, ss.	23(b) and 46(a).), and 0.5ZA
would in	my opinion have	authorized the constitution in accordance

with its provisions of six separate proceedings. In fact only one

notice of hearing was flled (see 0.5ZA	R.20), and the prescrlbed
form of notice ( s e e Form 55CB of the First Schedule) was	modified

to comprehend the plurality of requests to which the notice

related. Only one serial number was assigned (see 0.1 R . 6 ) .	In a
case such as	this, where "the circumstances concernmg, and the
reasons for,	the failure by the taxpayer to lodge the ......

request" are identical in respect	of the six	applications, no
inconvenience wlll attend that course.	If an appllcation of	the
kind to which s.l88B(3) refers is grounded,	as I think it is,	upon
a "cause	of action", within the meaning of that expresslon	In
Order 6 , the ~oinder	of the six applicatlons	in the one proceedlng

may be thought to have been authorized by	0.52A R.3 and 0.6 R.1.,
which provide	as follows.

0.52A R.3.

"Subject to this Order and to any law of the
Commonwealth, the provisions of this Order and
other Orders of these Rules apply, so far as

is practicable, to proceedings to which the

last preceding rule applies and, for the

purposes of this Order and other Orders of

these	Rules,	the	applicant	and	the
Commissloner	shall	parties	be	the	to

proceedings. 'I

An application of the kind which is here in question is a

proceeding to which "the last preceding	rule", in the sense of
that phrase in	0.5X R.3, applies.

0.6 R.l.

"Sub~ect to rule 6 an appllcant, whether

claiming in the same or different capacities,

map, in any proceeding, clalm relief in

respect of more than one cause of action."

However, one map doubt whether the applicant had formed

an intention to take advantage of 0.6 R.l, or had sufficiently

communicated that intention by using one document rather than six

documents in	making the applications in wrlting which	s.lEB(Z)
contemplates.

If the combination of the six applications in the one

proceeding involved any failure in compliance with a requirement

of the Rules, I dispense with that compliance. (See 0.1 R.8.)

Joinder of several causes of action may result in

inconvenience when the constituent facts of each cause of action

c

1 .

are dlverse. The inconvenience may be more easily avoided by

eschewing joinder than by recourse, in respect of an lnconvenlent

joinder, to 0.6 R . 6 , which provides:

"Where any joinder of parties or	of causes of
proceeding or 1 s otherwise inconvenient, the	action may complicate or delay trial of the other order as the Court thinks fit."
The evidence justifies the granting of the six

applications. In each case it wlll be ordered that the time

within which the appllcant's request to refer the Commlssloner's

decision on his objection to the assessment may be lodged with the

Commissioner be extended until 14 August 1987.

As to costs, I would have thought that the approprlate

order was that the respondent's costs of the proceeding be paid by

the applicant. That is the order I will pronounce. If the

parties desire some other order	as to costs, they may apply	for a
variatlon of the	order as to costs, pursuant to	5.35 R.?.

I certify that this and the 6

preceding pages are a true copy of the Reasons for Judgment herein of

Honourable	the	Mr.	Justice
Jenkinson.

Dated: 11 February, 1988

1 .

8.

Counsel €or the Applicant	Mr. P.M. Borenstein
Counsel for the Respondent	Mr. V. Tavolaro
Solicitors for the Applicant :	Coltmans
Solicitors for the Respondent :	Australian Government Solicitor
Date of Hearing	12 October, 1987