Webb v Deputy Commissioner of Taxation

[2017] FCA 1520

FEDERAL COURT OF AUSTRALIA

Webb v Deputy Commissioner of Taxation [2017] FCA 1520

Appeal from:

Deputy Commissioner of Taxation v Webb [2017] FCCA 1137

File number:

VID 1023 of 2017

Judge:

O'CALLAGHAN  J

Date of judgment:

15 December 2017

Catchwords:

PRACTICE AND PROCEDURE – application for extension of time to appeal from the Federal Circuit Court of Australia – whether applicant provided acceptable explanation for delay in commencing appeal – consideration of substantial merits of application

Legislation:

Federal Circuit Court of Australia Act 1999 (Cth), s 104(2)

Federal Court of Australia Act 1976 (Cth), s 24(1)(d)

Federal Court Rules 2011 (Cth), rr 36.03, 36.05

Cases cited:

AZAEY v Minister for Immigration and Border Protection (2015) 238 FCR 34

Jackamarra v Krakourer (1998) 195 CLR 516

Date of hearing:

23 November 2017

Registry:

Victoria

Division:

General Division

National Practice Area:

Commercial and Corporations

Sub-area:

General and Personal Insolvency

Category:

Catchwords

Number of paragraphs:

18

Counsel for the Applicant:

The Applicant appeared in person

Counsel for the Respondent:

Ms A Wilson

Solicitor for the Respondent:

Australian Government Solicitor

ORDERS

VID 1023 of 2017
BETWEEN:	GRAHAM LEE WEBB Applicant
AND:	DEPUTY COMMISSIONER OF TAXATION Respondent

JUDGE:	O'CALLAGHAN  J
DATE OF ORDER:	15 DECEMBER 2017

THE COURT ORDERS THAT:

1.The application for extension of time within which to appeal be dismissed.

2.The applicant pay the respondent’s costs of the application.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

O’CALLAGHAN J:

INTRODUCTION

1. Mr Webb (the applicant) seeks an extension of time within which to file an appeal from orders made by a judge of the Federal Circuit Court of Australia (the FCCA) on 30 May 2017.

2. On 10 November 2016, Registrar Ryan of the FCCA made orders, including an order for sequestration of the applicant’s estate.

3. The applicant sought review before a judge of the FCCA under s 104(2) of the Federal Circuit Court of Australia Act 1999 (Cth).

4. Having heard the application on 10 May 2017, the primary judge made orders on 30 May 2017 that the sequestration order was validly made and that the application be dismissed.

5. Section 24(1)(d) of the Federal Court of Australia Act 1976 (Cth) gives this Court jurisdiction to hear and determine appeals from judgments of the FCCA exercising original jurisdiction under a law of the Commonwealth.

6. Rule 36.03 of the Federal Court Rules 2011 (Cth) (Rules) provides that an appellant must file a notice of appeal within 21 days after the date on which the judgment appealed from was pronounced or the order was made.

7. The applicant was therefore required to file his notice of appeal by 21 June 2017.  He did not do so until 19 September 2017.

8. Rule 36.05 provides that a party who wants to apply for an extension of time within which to file a notice of appeal must file an application in accordance with Form 67.  That application must be accompanied by:

   (a)the judgment or orders from which the appeal is to be brought;

   (b)the reasons for the judgment or orders, if published;

   (c)an affidavit stating:

   (i)briefly but specifically, the facts on which the application relies; and

   (ii)why the notice of appeal was not filed within time;

   (d)a draft notice of appeal that complies with rules 36.01(1) and (2).

   CONSIDERATION

   Relevant principles

9. The principles to be applied in considering an application for an extension of time are well-established.  They include:

   (1)whether the applicant has provided an acceptable explanation for the delay in lodging the application;

   (2)whether the respondent would suffer prejudice in light of the delay should an extension of time to lodge the application be granted; and

   (3)the merits of the substantial application.

   See, for example, AZAEY v Minister for Immigration and Border Protection (2015) 238 FCR 34 at [10], and the cases there quoted.

   Explanation for the delay

10. In an affidavit provided to the Court on the day of the hearing of this application, the applicant gave the following evidence to explain the delay:

    2.My application for an extension of time was delayed due to an incorrect form being submitted to the Federal Circuit Court on 18^th June 2017.

    3.I made several phone calls to the registrar re the processing of the form.  I have submitted the email correspondence as evidence of the delay, waiting for a response from the registrar.

    4.After correct forms were submitted, I waited over a month for them to be accepted for filing & stamped.  I rang the registrar several times to enquire of the delay in processing the forms.  They informed me that they were very busy and would process them when they could, hence the delay.

11. The applicant has not demonstrated any plausible reason which goes to explain the delay in commencing the appeal and provide a foundation for the conclusion that it is in the interests of justice that an extension be granted.

12. Although the respondent does not claim that he would suffer any prejudice should the application be granted, because no such plausible reason is given, the application for extension of time may be refused on that ground alone.  There is a more substantive reason, however, why the application should be refused, namely that the appeal is bound to fail.  I turn now to that question.

    Merits of the substantial application

13. An extension of time to file an appeal will not be granted where an appeal has no reasonable prospects of success: Jackamarra v Krakourer (1998) 195 CLR 516 at 521 per Brennan CJ and McHugh J, at 540 per Kirby J.

14. The applicant has not filed a draft notice of appeal, as required by the Rules. As best as can be discerned from his affidavit material, the applicant contends:

    (1)Registrar Ryan did not have the authority to adjudicate the matter.

    (2)The Deputy Commissioner of Taxation did not have the authority to prosecute the matter.

    (3)Registrar Ryan gave undue weight and regard to the “income assessment act 1936” (which I read as a reference to the Income Tax Assessment Act 1936 (Cth)), as that Act has not been lawfully enacted, as it does not have a proclamation certificate as prescribed by the Commonwealth Constitution.

    (4)The Australian Taxation Office is not a legal entity.

    (5)It has been proven that the Australian Taxation Office is not a legal entity in the case of Moeliker v Chapman (B8/2000; [2000] HCATrans 242).

    (6)The proceeding should be struck out because the Deputy Commissioner of Taxation has no standing.

    (7)This Court has no jurisdiction to proceed without a trial by jury.

    (8)The “Voice of the Australian Constitution” is relevant.

    (9)What are referred to as “The Criminal Act” and the “BWS documents” are somehow relevant.

15. The primary judge dealt with points (1)-(8) above, variously describing them as “miss[ing] the point”, “untenable”, “misconceived”, “manifestly unarguable” or “hopelessly untenable”.

16. The matters raised at (9) above are new.  They purport to rely on, or refer to, annexed documents.  As best I can tell, those annexed documents appear, in the first instance, to challenge the validity of Western Australian Acts of Parliament since the Acts Amendment and Repeal (Courts and Legal Practice) Act 2003 (WA) and to allege that the Act represents a criminal act of treason by the State of Western Australia and the Commonwealth. The other annexure is, apparently, material prepared, or relied on, by a Mr Brian William Shaw in other proceedings, the relevance of which is not apparent.

17. Each of these matters, assuming that they are proffered as grounds of appeal, is self-evidently misconceived.

    CONCLUSION

18. For the foregoing reasons, the application for extension of time will be dismissed with costs.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O’Callaghan.

Associate:

Dated:        15 December 2017