Nancy Joan Johns v Deputy Commissioner of Taxation

[1984] FCA 469

CATCHWORDS

Administrati-?e law - review of respondent's decizion

to w a n t applicant's extension of time to pay

recoupment tax - interlocutory relief - Gibbs C.J. in Australian Coar3e Grains Case followed - no 3erious

question to be tried

Administrati-?e Decisions (Judicial Review) Act

HANCY JOAN JOHNS ;I IjEFUT? COMMISSIONER OF TAXATION

No. G 330 of 1984

Mor 1 i n u J .

73 November 1384

Z-fdneg

IN THE FEDERAL COURT OF AUX’RALIA	)
)
tJEW SOUTH WALES DISTRICT REGISTRY	) NG. G320 of 13E4
I
GENERAL DIVISION	)

BETLEEIJ: lIANCY J0.W JOHNS

Applicant

AND :

DEPUTY COMMISSIONER OF

T.WTION

Respondent

O R D E R

JUDGE MAKING ORDER : Morlinu J.

DATE OF ORDER	23 November 1904
WHERE MADE	Sydney

THE COURT ORDERS AS F O L L O W :

1.      Application refused.

IN THE FEDEFtA9L COURT OF AUSTRALIA )

NEN SOUTH WALES	DISTRICT	REGISlXY	)	No. G331 of 1384
)
GENERAL DI'JISION	1

B r n E E N : WARREN THOMAS JOHPJS

Applicant

AND : DEFUTY COMMISSIONER OF

TAYATION

Respondent

O R D E R

JUDGE MAKING ORDER	:	Morling J.
DATE OF ORDER	:	23 November 1384

WHERE MADE : Sydney

THE COURT ORDERS AS FOLLOWS:

1.      Application refuzed.

It1 TIE FEDERAL COURT OF BU5TRP.LI.I

PIEW SOUTH WALES DISTRICT FEGISTRY	)
)

Gmmx DIVISIOH )

No. G330 of 13e4

D F l w E E s I : LI.'JJCY J0.W JOHEIS

Applicant

AND :

DEFUTY COtlt4ISSIONER OF

TILXATION

Respondent

No. G331 of 1384

EE"L4EEN : HARREN THOMAS JGHPJS

Applicant

AND :	DEFUTY COtISIISCI'JPIER OF
TAXAT I Of1

MORLING J.

REASONS FfjR JIIDGPECJT

These are txo mpllcstions t o r e n e w dsclslms cjf the

relwndent refusins extensicn sf time to r;he applicants to Fa:?

recoupment tax to zhich they have been assessed.

L.. ,

It is unnecessary to refer in an7 detail at izhis 3tau-e

to the actual decisions made b-J the respondent. The dec1s1om

are said to have been made on 22 Auau3t 1384. Hove-?er. as izhe

historv of the matter vi11 show in 30 iar as anp decisions vere

made on or about 2 2 Aucrust 1384 they appear to have been

overtaken by letters which were furnished to the applicants

durinq the course of todsp. It appears that =hatever occurred

before 22 Auuust 1984. about mid-September applications were

certainly made to the respondent seekinq extensions of time to

pay the recoupment'tax.

On 23 November (that is to 3ay. today) the respondent

wrote to the solicitor for the applicants referring to the

request for extensions of time and adiri3inq him that the

requests were refused. In letters of the same date the

respondent furnished a statement of his reasons far hls

3eclsions to refuse the requests for extensions of time.

Before I state m:J canclusion on the applications

before the Court, I cannot refrain from expresslnq m7

disRleasure that this matter has had to be heard today. The

matter -,-a3 in the 1izt of some thirt:J-thrze matter3 f o r

directions. and it 783 m the 11st fcmr dlrectlins onl:;. When

the matter gas called on for hearinu, the appllcmt -,.as Ect

a;-:?a-e zf the terms of the l?tt~rs of 1 3 tJo-.zmhr. 5ecau31 I

xas unable to deal Zith the matter xhen the marter ;;a5 first

callzi m. it :a3 stood ,?;m until x z Ift?rn:cn. >.zFxc?tl;-

some time later in the mornina the letters were served upon the

solicitor for the applicant. He received those l?tters some

nine weeks arter he had xitten seekina an extcnsion of time on

behalf of his client.

I do not think any complaint can be made about the

respondent's delay in furnishinu a reply to the requests for

extension of time. The respondent has onerous statutorv

functions to perform. and it is clear that he gave the

applications considerable thouaht before replying. But I think

hi3 insistence on the matter proceedinu today is quite

unreasonable.

It was whollv reasonable for the applicants to seek

some time. even a. day? or so. to consider the term cf the

letters for which they had been waitina for nine veeks.

Instead of affordinu the applicants' leoal a&Ji3€r3 such a

brief time. counsel for the respGndent xa3 obliued to mtorm

the court that h13 instructions were thlt h1s cllent would

siun judament in the proceedings to which I 7111 refer ln a

moment, at the earliest opportunity. And indeed It was said

that Judgnent would be siuned on Nonday if the r?spondent was

in a aositlcn to do so.

'Jnder those circumstances counsel for the agpliisnt

had no alternative hut to rjrsceed forr;hyith to z?ek

interlocutor: relief, and t5e last t x h'Ic.urz GL- so has beer.

4.

taken up with hearins that application. I think he could reasonabl:? have expected. in view of the history of the matter. that the applications would not have proceeded today. BGt it

has been necessary to hear them and I must deal with them.

It appears that some time after the assessments which

qai-e rise to the recoupment tax were issued. summonses ?ere

issued aaainst the applicants in the Di~trict Court. "hat the

applicants now seek in effect is an interlocutory order from the Court restraifiing the respondent from proceeding with the proceedings in the District Court pending the application

before this Court under the Judicial Review Act.

Notwithstsndina the unsatisfactory way in which the

matter is before the Court. and notvithstandinu xhat I rward as being the quite unreasonable attitude of the respondent. I

must deal with the aDplications accordinu to law. That 13 to

say. before urantlnu interlocutsry r z l i e f . I must k? satizfizd

that the applicants have shoijn that there is a 3erious question

to be tried. and secondl-? that the balance of convenience lles

in favour of urantinu Interlocutory relief. Althouqh the

decision of Gibbs CJ in the Australian Coarse Grains Case was

not uiven In relation to a decislon under the Judicial Rcvlex

1377, I think that what he there said as to the Erinciglej

under which interlocutory relief should he ?ranted should be

applied to applications for	1nterlocutor:J relief un3er the
Ju5'icisl Cevisw Art.

5.

Mr Carnoyale on behalf of the applicants has submitted

that there is evidence before the Court from which It can be

seen that his client may well be held to be entitled to relief

under 3. 5(l)(e). (f) or (h) of the Act. As his aruument was

developed. it really was that he relied upon S. 5(l)(e) as

expanded by S. 5(1)(2)(f) and ( a ) .

Notvithstandinu the araument put by him. I do not

think on the material presently before the Court that he has

made out this 1im”of his case. I was initially attracted to

the view that what was said by the respondent in para. 9(b) of

the letter of 2 3 November (Exhibit 2 ) made out to the requisite

degree the applicant’s case under S. S(l)(e) as expanded by 3.

5(2)(f): that is to say, that when the respondent exercised

his di3cretion under S . 206. he exercised it in accordance with

a rulinp or policy without reaard to the merits of the

applicant‘s particular case.

However it 3eems to me on a conslderation of the whole

matter. this cannot fsirlv be said. What the respondent says in wra. 9(b) of his letter is that he has uuldellnes. I do

not think that there is sufficlent evidence that his discretion

to refuse the applications for time to 03:? the rocowment tax

depended upon hi3 decision merel:? to appl:? those zuidelines

vithout reuard to the merits ~f the c a c ~ . Indeed, there 13 a

great dcal in hi3 letter to lndicate that that =a3 not the

saze. zince man-; other matcerz are referred to.

G.

It is only fair to say in favour of the Commissioner

that there is some material in what was put to h i m by the

applicants themselves which could properly have inclined him to

refuse the applications. I refer to what appears to be the inability of the applicants to pay the recoupment tax even if they are given time to pay.

For these reasons I feel I should not urant

interlocutory relief. In so deciding I would not wish to

preclude the applitants from making a further application if

they think they can improve their position by further evidence.

and in particular by tendering documents which may be produced

on subpoena. I say that because it may be that when the

Commissioner’s files are looked at it will be seen that there

is material which would support anothtr application.

khat I have 30 far said makes it unnecessar:? for me to

consider the balance of con-Jenience. However. I am bound to

3ay that ha;rins heard counsel for the respondents I think it is

a nice question xhere the balance of convenlence lles in this

case. I think there is substance in Nr Roberts’ submizsion

that the failure of these applications does not mean that the

applicants are depri-;ed of their riuhts to seek to persuade the

Di3trict Court that thev should be uljren tlme to pay an:?

judqment. zhould a !udqment be entered aualnst them. Nor. of

course. does failure In those crxoelincrs pr%ent the

~pplicants from res1ztlnu or zeekina to lela:? proceedlcgs In

bankruptcy should they be commenced.

.

7.

Notwithstanding these considerations I think that on

balance. I would have been minded to urant interlocutory relief

in this case if only the question of balance of convenience had

been at issue. But as I have said I do not think the

applicants have made out a case on the first limb of their

argument and fo r that reason the application3 xi11 be refused.