Waterhouse, R.W. v Commissioner of Taxation

[1986] FCA 417

Respondent

MINUTE OF ORDER

J m :	FOX J
DATE OF ORDER:	l6 SEPTEMBER 1986
WHERE MADE:	SYDNEY.

THE COURT ORDERS THAT:

1. The applicant's motlon daced 27 Aunust 1986 he

dismlssed.

2 .     The applicant pay the respondent's coscs o f the motion.

3 .	The applicant's oral appllcatlon for an extension nf
time to file an appllcatlon for nrder n€ an nrder of

review h? dismissed.

4. The application for an ,?rtder ,of v e v ~ e w #dated 11 .Tllne

1986 be dismissed.

The applicant pay the respondenc's cnsts nf a3pllcatlon.s ( ? ) and 1 4 ' the c o s c s to Include t i e ~esmx15enr 3

obiectlon to rompetencp dated 2 July 1 9 @ &

Note: Settlemenr; and entrv of orders 7 - 5 d s s l t -:-L!!L In

Order 36 n€ the Federal Court Pules.

THE DEPUTY COMMISSIONER nF

TAXATION, PARRAMATTA,

OF THE COMMONWEALTH OF

AZTSTRFLIA

Respondent

No. G244 of 1986

BETWEEN:

ROBERT WILLI-M WATERHOUSE

Applicant

am :

THE DEPTJT? COMMISSIONER OF

TXGT I ON, FARRRAMATTA ,

OF THE rOMM0NWEALTH CIF

Respondent

. .L.

2.

Robert William Waterhouse and Wllliam Stanlev Waizerhouse

have each made two applications whlch are before me. The

material relatinu to the situation of the two persons 1s

identical. It is only necessary to discuss one in order to

dispose nf both. So far as necessary T. wlll refer to the

material in the case of Robert Wllliam Waterhouse.

The first applications were to extend the time in which

the applicants could apply for statements under section 13 of the

Administrative Decisions (Judicial Review) Act 1977 with

reference to the notices hereinafter referred to. There is no

provision in that Act for the extension of time for applications

to be made under section 13, and it was aareed that the

applications had to fail. It was said by counsel that the

application had been made on the basis that at a hearins.

assurnina proceedings for review went ahead, the fact that a

statement under the section had been soucrht was relevant. I sav

nothinu as to this proposition except to point nut that it

relates to evldence and does not lllstlfv substantive appllcatlons

such as the present. I therefore dismiss the applications to

extend the tlme in which a statement under section 13 may be

souaht .

The more substantial matter concerns the renew of a

declsion of the respondent made on 22 Aprll 1995 notifled bv a

formal notlce of chat date, mven under s .264 nf the Income Tax

>..ssessment Art 1936. Th? matter rOmes befcrr F[:+ i-nllrL. I I G ~ ? v ~ ~ .

not by way of an apwilcation to extend the time In whlch an

application for renew of that declsion may be made but on an

application by the respondent to dismiss the applicant's

application as incompetent.

So far as the documents are concerned. the application

for review, (I take the case of Robert Waterhouse) which was

flled on 11 June 1986. plainly is Incompetent. in the sense that

it 1 s well out of time. However, counsel for the applicants has

orally applied to-day, before me. f o r an extension of the time in

which the application mav be made fo r review.

The application for review which has been filed lacks

detail but it is my understandins that the substantial sround

sought to be aruued is that the time uiven in the notice issued

on 22 April 1985 was unreasonably short. It sought a very wide

ranne of information to be supplied on or before 29 May 1985.

This was indeed a short time, but the evidence does not

enable me to say that it was so unreasonable that the notice

should be recrarded as invalid. o r . althouuh the matter was not

put this way, that there is a Good arcruable case that It 1 s

invalid. The case has nnt been presented rmn the footina that

€1Irther avidenc? 1 s tn be addressed. but rathpr the footinrr that the exl5tlncr mat?rlal proves rhe (mreasonahleness.

An Important factor 1 s that the respondent snltaht rhe

4.

same lniormatlon both	a r a l l y ?nd	by a written communlcatlon In
Februarv 1985.

The pvidence in ~ I I P C Q ~ ~ of the applicants‘ case is to be

found. In the affldavlt .-#f I4r F n t t s xho was a tax auent who acted

for both applicants. So far as appears they left the Whole

sltuatlon m his hands and m his affidavlt he has pointed out the difficulties he had 5n far as the availabllltv of his time

was concerned in acqulring the necessary information and

answerins the request. This is somewhat inconclusive. He

mentions the possibility of employing someone else to assist but

disposes of that proposition rather summarily. In a letter to the respondent dated 29 May he concludes by saying that he is uoing away for several weeks leave. What could have been done

had a whole-hearted attempt been made to obtain the information.

so that nearly all of it or all of it could have been provided

withln tlme, is not a matter upon which my conclusion at this

staue can safely be reached.

It seems to m e therefore that the main essence o€ the

3ppllcant’s case in reqard to this matter must fail: at least 1

cannot be satisfied that there	is a suffficlentlv sound case that
It, 8:ould succeed.

There are other important consideratlons. I have

r~enrl~med that the notice gas Issued on 22 Aprll 1585 and that +!-;e appllcatlon for review gas made on 11 June 1986. and no

J

?.e;? 1.5 n@ iexolanation a5 t o xhJ7 the application for

r e r r l e ; - -73: -.UT nf tlm? o r belnu out of tune why an appllcatlon

was n n t made for extension of tlme. Counsel f o r the applicants

proifers 3 n 4xplanatlon (not appearmu from the evidence) which

he says 1 5 That it was o n l y in the course of proceedinus in the

mauistrates court, relatinrr to the applicants' default under the

notice, that it was realized that that court could not deal with the validitv or otherwise of the notice. With respect. this does

not seem to me to Le helpful to his case, or to account for the

€allure to apply manv months aao for an extension of time. If

the notlce was to be challenued. there was leuislation now relied upon as enablincr this to be done. The tlme to do it was when the

notice was received, or. at least within a short time thereafter.

To relv upon a bellef that a Court before whlch a penalty was souuht would not enforce it was to turn one's Lack on the

leuislatlon In questlon, and to disclose lmnorance	of 5 . 9 of the
kct.

6.

notLce has to tills date been satlsfied.

The auestlon of prejudice to the parties was debated.

The preludice to rhe applicants if t,he present applicatlon fails

will be that rhe proceedinus in ths local court can continue in

that reaard and a fine. imprlsonment or both can be imposed.

What course the court micrht take is of course a matter for it and

it may be influenced	bv whether or not the information souaht	has
been furnished.

The preiudice to the respondent is rather that of an

authority which has the responsibility for collecting tax and to

this end obtaininu relevant information from tax payers. The

present applicants have apparently already occupied a

considerable part of the time of the taxation authorities and it

can be said that the public throucrh them has suffered some

pre?udlce by their failure to comply with the notice. I sav this

because it can be ton rearlilv thoucrht that a public authoritv

does not really suffer "prejudice" in the relevant sense. T

think that is wronu, at least in a case such a s the present.

I am afraid that mv present concluslon nn rhe facrs

xnuld be that rhere 1 s a lack of uenulnene5s m the appllcatlon

made. It apP?ars T;O me that there 1s noT; a real concern about

the notlce. o r che tune i t allowed. It 1 s recocrnised that the

respondenr: 1 s -nxcled to have the informatlon. and promises have

from tlme ro rlme been made to provlde It, or part of It. What

L-’

7.

1 s sought is to Impede action bp the respondent to uet lt, cIr apt

all of it. If it had all been supplied bv now. there would be

little if anv point in the present application. Seeminuly. the

auplicants are indulqinq in delaving or attrition tactics. Thev

let the application for an order of review rest in the file until

action was taken by the respondent. At the last minute

application is made for an extension of time of over a pear.

I order that the applications in relation to section 13

be dismissed. with costs: that the oral applications made by

counsel be dismissed, with costs: and it it be declared that the

applications are not competent. aqain with costs.

Anythins else?

DR FLICK:	I do not	think	there is anything	further.	vour
Honour.

MR LEWIS : No, your Honour.

HIS HONOUR: I suppose it is right to say that the

applications are incompetent - incompetence for

want of beinu filed in tine. The other thinu is

to order their dismissal. and perhaps that is

what 1 should do, rather than talk aboaut

competence. rompetence raises quesr:lons of -

normallv raises questions of rlefinltion nf

decision and suchlike matters.

FLICK: If v o w Monnur were prepared til mak? ,?~-rlers 11,

HIS HONOUR:

competence.