Osborne, R. v Commissioner of Taxation

[1993] FCA 635

JUDGMENT No. ........ ........ .. .,.......,. 6 3 5 1 9 3

IN THE FEDERAL COURT OF AUSTRALIA	)
)
VICTORIA DISTRICT REGISTRY	) No. VG 344 of 1993
1
GENERAL DIVISION	)
B E T W E E N :

RAY OSBORNE

Applicant

COMMISSIONER OF TAXATION

Respondent

JUDGE :	Heerey J
-	DATE :	2 September 1993
PLACE :	Melbourne  I 5 QED rnnv . - W L I lJra

FEDERAL COURT oF

REASONE i FOR JUDGMJ3NT

The applicant seeks an extension of time under 0.53 r.7 for bringing an appeal against a decision of the Administrative Appeals Tribunal in a taxation matter. The discretion conferred by the rule is an unfettered one, except insofar as sub-rule (3) indicates that the application is to be accompanied by an affidavit showing (a) the nature of the case (b) the questions involved and (c) the reason why an extension of time should be given.

First, the delay considered purely as a matter of time was

Each case will have in its own circumstances factors which in the particular case carry greater weight than others. In the present case, there are a number of factors which, to my mind, point in favour of exercising the discretion favourably to the applicant.

some six weeks, which I do not think could be characterised as inordinate. Secondly, no prejudice is alleged by the respondent; the tax and penalty have in fact been paid. Thirdly, the amount involved, some $80,000 is quite substantial and the applicant, on the face of it, should be entitled to exercise the rights which the law gives him to challenge that liability, subject to compliance with procedural requirements which themselves contemplate that an extension of time may be given.

There has been an explanation of the delay given which amounts to some lack of organisation by the applicant himself and his legal adviser. I suppose in all these cases if people acted with super efficiency in an ideal world there would never be any need to extend times, but experience shows that people do overlook things and not organise their affairs adequately. I do not see that fact as fatal to the success of such an application if there is no prejudice to the respondent and if

the appeal sought to be brought is otherwise genuine and	substantial.
That brings me to the final question which M r Vitale for the respondent urged against the granting of the extension; namely, that the appeal was without merit. I feel it quite impossible to say at this stage that this case, involving as it does an examination of a substantial body of authority at Privy Council and High Court level as well as other authorities, is without merit. There are cases that, broadly speaking, are comparable to this type of case on s.260 which have gone either way. The fate of this case will depend on a careful analysis of the evidence and the application to that evidence of the principles which are to be deduced from the cases. Nothing that has been put to me today persuades me that the case is not arguable.
I will extend the time for filing and serving a notice of
appeal until 4 pm on this day, Thursday 2 September 1993. I will order that the applicant pay the respondent's costs of this application.

I certify that this and the

preceding two (2) pages are a true copy of the reasons for judgment of his Honour Mr Justice Heerey.

Dated: 2 S

ADDearances
Counsel for the applicant:	Dr J Cassidy
Counsel for the respondent:	Mr F Vitale
Solicitor for the respondent:	Australian Government Solicitor
Date of hearing:	2 September 1993