Winter and Commissioner of Taxation (Taxation)
[2023] AATA 3857
•21 November 2023
Winter and Commissioner of Taxation (Taxation) [2023] AATA 3857 (21 November 2023)
ReviewNumber: 2023/1364, 2023/1365, 2023/1366, 2023/1367, 2023/1368, 2023/1369
Division:TAXATION AND COMMERCIAL DIVISION
File Number(s): 2023/1364, 2023/1365, 2023/1366, 2023/1367, 2023/1368, 2023/1369
Re:Victoria Winter
APPLICANT
AndCommissioner of Taxation
RESPONDENT
DECISION
Tribunal:Deputy President Boyle
Date:21 November 2023
Place:Perth
The application for an extension of time is dismissed.
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Deputy President Boyle
Catchwords
PRACTICE AND PROCEDURE – Administrative Appeals Tribunal Act 1975 – whether Tribunal has power to extend time for the making of an application which was previously dismissed under s 42A(5) – consideration of estoppel – consideration of reinstatement pursuant to s 29(7) – restriction on the power to reinstate is necessary to deliver harmonious goals – s 42(10) – Tribunal does not have power to extend time – application dismissed
TAXATION –Taxation Administrative Act 1953 – pt IVC – s 14ZZC – objection to amended assessment – objection to administrative penalty – application for an extension of time to make an application to the Tribunal for review of objection decision – application dismissed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) ss 25(1), 25(4A), 26, 29, 29(7), 37(1), 40, 42A(5) 42A(8)-(10), 42A(11), 43(1)
Taxation Administrative Act 1953 (Cth) pt IVC, s 14ZZC
CASES
Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1
Blackadder v Ramsey Butchering Services Pty Ltd (2005) 221 CLR 539
Commonwealth v Verwayen [1990] HCA 39; (1990) 170 CLR 394
DFYN and Commissioner of Taxation [2022] AATA 3991
Kalafatis and Commissioner of Taxation [2012] AATA 150
Plaintiff S4/2014 v Minister for Immigration & Border Protection (2014) 253 CLR 219
Project Blue Sky Inc v Australian Broadcasting Authority (1996) 68 FCR 45; (1996) 148 ALR 412
Thompson v Palmer (1933) 49 CLR 507
SECONDARY MATERIALS
LexisNexis, Halsbury’s Laws of Australia (at 20 March 2023) 190 Estoppel, ‘1 General Nature and Principles’ [190-1].
REASONS FOR DECISION
Deputy President Boyle
21 November 2023
APPLICATIONS
The Applicant seeks an extension of time for making an application for review of the Respondent’s objection decision made on 19 November 2020 (the Objection Decision).
PROCEDURAL BACKGROUND
The Objection Decision was previously the subject of an application for review lodged by the Applicant on 14 January 2021 (the Previous Application).
On 25 March 2022, the Previous Application was dismissed under s 42A(5) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) by operation of a “guillotine” or “springing” order.
On 26 April 2022, the Applicant applied for reinstatement of the Previous Application under ss 42A(9) or (10) of the AAT Act.
On 30 August 2022, the Tribunal refused the application for reinstatement of the Previous Application on the basis that the Applicant could not satisfy the requirements of s 42A(10) of the AAT Act.[1]
[1] DFYN and Commissioner of Taxation [2022] AATA 3991 (DFYN 22).
THE OBJECTION DECISION
The substantive application for which the Applicant seeks an extension of time is an application under Part IVC of the Taxation Administrative Act 1953 (Cth) (TAA) for the review of the Objection Decision. The Previous Application was made under the same provisions and sought review of the same decision.
By the Objection Decision, the Respondent disallowed the Applicant’s objections made on 27 June 2019 to notices of amended assessment and notices of assessment of administrative penalty issued to the Applicant on 29 April 2019, in respect of the 2010 to 2015 income years, together with imposition of associated shortfall interest charges.
Under s 29 of the AAT Act, as modified by s 14ZZC of the TAA, an application to the Tribunal for review of a reviewable objection decision “must be lodged with the Tribunal within 60 days after the person making the application is served with notice of the decision”. The period for the making of an application for review can be extended under s 29 of the AAT Act.
THE ISSUE
The two issues for determination are:
(a)whether the Tribunal has power to extend time for the making of an application which has previously been dismissed under s 42A(5) of the AAT Act; and
(b)if it does, whether the Tribunal should grant the extension of time.
LEGISLATION
Section 29(7) of the AAT Act provides:
The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision (including a decision made before the commencement of this section) if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.
Section 42A(5) of the AAT Act provides:
(5) If an applicant for a review of a decision fails within a reasonable time:
(a) to proceed with the application; or
(b) to comply with a direction by the Tribunal in relation to the application;
the Tribunal may dismiss the application without proceeding to review the decision.
Sections 42A(8)-(10) of he AAT Act provide the Tribunal with power to reinstate an application that have been dismissed. Relevantly, s 42A(10) provides:
If it appears to the Tribunal that an application has been dismissed in error, the Tribunal may, on the application of a party to the proceeding made within the period referred to in subsection (11) or on its own initiative, reinstate the application and give such directions as appear to it to be appropriate in the circumstances.
THE PARTIES’ CASES
The Applicant
By written submissions dated 12 April 2023, the Applicant contended that:
(a)The Respondent initially consented to the reinstatement of the Previous Application and subsequently did not oppose reinstatement.
(b)In submissions to the Tribunal in the Previous Application the Respondent stated that the issue of fresh proceedings was a possible answer if the Tribunal found that it did not have power to reinstate.
(c)Following those submissions that Applicant sought to confer with the Respondent which resulted in the Respondent directing the Applicant to the Respondent’s online in-house alternative dispute resolution.
(d)The Respondent subsequently (December 2022) advised the Applicant that it did not consent to the in-house alternative dispute resolution.
(e)By mid-February 2023 the Applicant had received no advice from the Respondent as to the Respondent’s willingness to engage with the Applicant to resolve matters so the Applicant made the present application.
(f)Submissions made by the Respondent in the reinstatement application stated that given the authorities “it was recognised that fresh proceedings might be an option available” if reinstatement was denied.
(g)Deputy President McCabe’s decision refusing reinstatement stated that the Respondent’s “representative acknowledged it might be possible for the taxpayer to make a fresh application for review if she were unsuccessful in seeking reinstatement”.[2]
(h)The Respondent is estopped from resisting the extension of time application by the principles established by the High Court in Commonwealth v Verwayen.[3]
(i)The substantive application would identify a substantial number of serious issues arising from the manner in which the Applicant was represented by solicitors and accountants. Substantial work has been undertaken to allow these issues to be scrutinised which would be wasted if the Respondent continued to oppose an extension of time.
(j)Given the work that had been done in the previous Application these proceedings will be capable of quick and effective resolution.
[2] DFYN 22 at [23].
[3] [1990] HCA 39; (1990) 170 CLR 394.
The Respondent
By its written submissions dated 10 May 2023, the Respondent submitted:
(a)On the proper construction of the AAT Act, there is no power to grant an extension of time in circumstances like the present. The Tribunal’s general power to extend time for commencement of an application for review cannot be read or applied so as to circumvent the specific restrictions on reinstatement imposed by s 42A(10).
(b)Even if there is power to extend time, there is no sufficient reason for the Tribunal to do so here as a matter of discretion. The application is significantly out of time, the merits do not appear to be strong, and the delay is not comprehensively explained. Further, the Tribunal can have no confidence that the delays which gave rise to the dismissal of the Previous Application would not again occur in the proposed application.
(c)It is a general principle of statutory construction that where the legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power (citing Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia.[4]
(d)In a similar vein, “an enactment in affirmative words appointing a course to be followed usually may be understood as importing a negative, namely, that the same matter is not to be done according to some other course” (citing R v Wallis).[5]
(e)These principles, which can be regarded as a manifestation of the general need to construe a statute on the prima facie basis that its provisions are intended to give effect to harmonious goals, apply in the present circumstances (citing Plaintiff S4/2014 v Minister for Immigration & Border Protection).[6]
(f)By s 42A(5) of the AAT Act, the legislature has conferred a power upon the Tribunal to dismiss an application for review for reasons of non-compliance with the Tribunal’s directions. That is accompanied with a power to “reinstate the application” under s 42A(10) if the application was “dismissed in error”, and if – unless special circumstances exist – the applicant applies for such reinstatement within a relatively short period of time (s 42A(11)).
(g)“Reinstatement”, in its ordinary meaning, involves putting something back in place; restoring some matter or thing to a prior position or state (citing the Macquarie Dictionary and Blackadder v Ramsey Butchering Services Pty Ltd).[7]
(h)In the context of the AAT Act, an application is the procedural mechanism by which a person (an applicant) invokes the jurisdiction of the Tribunal to review a particular decision and to exercise a range of powers and duties connected with the review of that decision (citing AAT Act, ss 25(1), 25(4A), 29, 40, 43(1) and Kalafatis and Commissioner of Taxation.[8] An application also has consequences for the decision-maker citing ss 26 and 37(1).
(i)The concept of “reinstating an application” under s 42A(10) is therefore concerned with restoring, to a prior position or state, or putting back in place, a former procedure for review of the relevant decision by the Tribunal, with its attendant consequences.
(j)The present application, if granted, would involve the Tribunal achieving the same matter, or following the same course, as reinstatement of the Previous Application. There is no discernible difference, certainly none of substance, between granting an extension of time for lodgement of a fresh application for review of a decision, and the formal reinstatement of an earlier (dismissed) application in respect of the same decision.
(k)The restrictions imposed by ss 42A(10) and 42A(11) represent a deliberate balance the legislature has struck between affording fairness to an applicant, while also ensuring respect for the Tribunal’s procedural orders and directions, and otherwise facilitating the orderly progression and finalisation of the business of the Tribunal.
CONSIDERATION
[4] (1932) 47 CLR 1 at 7.
[5] (1949) 78 CLR 529, 550.
[6] (2014) 253 CLR 219 [42]-[43]).
[7] (2005) 221 CLR 539 [14], [16], [33], [75].
[8] ([2012] AATA 150 [61]-[65].
Estoppel
Before I consider the whether the Tribunal has the power to extend time for making the application, I will address the Applicant’s argument that the Respondent is estopped from resisting the extension of time. I reject the Applicant’s argument for the following reasons.
Firstly, in relation to the role that any estoppel may have on the question of whether the Tribunal has the power to extend time to make an application in exactly the same terms as a previous application that has been dismissed, that question goes to the jurisdiction of the Tribunal to make the order sought. If the Tribunal does not have the power to make the order sought, the parties’ attitude to the application and whether it is agreed or resisted, is not relevant. The parties’ agreeing that an order can be made does not bestow on the Tribunal power that it does not have. Further, and in any event, an estoppel cannot operate to give the Tribunal a power that it does not have on the proper construction of the AAT Act.
Secondly, the factual basis upon which the Applicant relies to argue estoppel is not sufficient to establish an estoppel in relation to the present application. Halsbury’s Laws of Australia [190-1] describes the general nature of estoppel as follows:[9]
Estoppel by conduct prevents a party from unjustly resiling from an assumed state of affairs which he or she has induced another party to adopt as the basis of some act or omission which, if the assumption were not adhered to, would operate to that other party’s detriment.
[9] Citing Thompson v Palmer (1933) 49 CLR 507 at 547 per Dixon J and Verwayen at 428-9 per Brennan J, at 434 per Deane J, at 453 per Dawson J, at 500 per McHugh J.
The Applicant argues that because the Respondent initially agreed to the reinstatement of the Previous Application and “acknowledged it might be possible for the taxpayer to make a fresh application” (see [13(g)] above), the Respondent is now estopped from resisting the present extension of time application. I do not accept that argument.
The necessary element of the Applicant having acted to her detriment in a relevant sense because of a claimed representation made by the Respondent is not present. As Brennan J described it in Verwayen at 429,[10] estoppel acts to:
…prevent unconscionable conduct on the part of the party who, having made a promise to another who acts on it to his detriment, seeks to resile from the promise.
[10] Citing the majority decision in Waltons Stores v Maher (1988) 164 CLR 387at pp. 404, 405, 419.
Insofar as the initial attitude of the Respondent in the Previous Application to reinstatement under s 42A(10) of the AAT Act could be taken to be a representation or promise by the Respondent (which is questionable), the Respondent’s attitude to that application, obviously to the Applicant’s knowledge, changed with the consequence that the Applicant had to press her application for reinstatement. In the end, the Respondent’s change in attitude and subsequent resistance to the application for reinstatement was irrelevant because, as found by the previous Tribunal, there was no power in the Tribunal to reinstate.[11]
[11] DFYN22 at [22].
The Applicant, even in respect of the reinstatement application in the Previous Application, did not act to her detriment in any relevant legal sense on the basis of any representation made by the Respondent as to its attitude towards the reinstatement application, or any acknowledgement made in the reinstatement application.
Further, even if the Respondent’s initial agreement to the reinstatement of the Previous Application were to be taken as a representation or promise of the type envisaged by Verwayen, any such representation or promise related, at most, to the reinstatement application only. It clearly could not be taken as any representation as to the Respondent’s attitude to any future application that might be made by the Applicant, particularly an application for extension of time to make an application which, for obvious reasons, could not have been in the parties’ contemplation at the time of the claimed representation or promise.
Insofar as the Applicant claims that an apparent acknowledgement that “it might be possible”[12] for another application to be made gives rise to an estoppel against resisting an application for an extension of time, or even against resisting the making of the substantive application for review, no such estoppel could arise on the language attributed to the Respondent. An acknowledgement that something might be possible is clearly not a concession that such an application can be made and would not be resisted, even if there was evidence of a reliance on that statement for the actions taken by the Applicant, which there is not.
[12] Applicant’s submissions dated 12 April 2023 at para [21], citing the decision in DFYN 22 at para [23].
The Applicant has not acted to her legal detriment in relation to the present application for an extension of time based on the Respondent’s initial non-opposition to the reinstatement application in the Previous Application or any acknowledgement made in the reinstatement application. None of the legal elements relevant to the present application for extension of time (other than possibly explaining the delay in making the application) or the substantive application sought to be made is, or could have been, affected by the Respondent’s attitude to opposing the reinstatement or the acknowledgment apparently made in the course of the reinstatement application.
Further, as the Respondent correctly contended, the Respondent’s attitude to the reinstatement application or any acknowledgment as to a possibility of a future claim being made, even if either or both were to be taken as representations, cannot be taken as a representation as to what the Respondent’s attitude would be to some future application for an extension of time or substantive application. The legal and factual matters relevant to a reinstatement application under s 42A(10) are totally different to the legal and factual matters relevant to an application for an extension of time or a substantive application. Clearly, the Respondent at all times, including leading up to the hearing of the reinstatement application, has resisted and continues to resist the substance of the Applicant’s claim. A possible concession, subsequently withdrawn, that an application which has been dismissed could be reinstated under s 42A(10) makes no representation about the merit of the substance of the application and certainly no representation about the merits of some future application for an extension of time which encompass consideration of the reasons for the delay and the merit of the substantial claim, amongst other considerations. Similarly, an acknowledgement that it might be possible to make a future application makes no relevant representation as to the Respondent’s resistance or non-resistance to such future application.
Does the Tribunal have power to extend time for the making of the application?
It is not disputed that the application for which the Applicant seeks an extension of time is the same application that was dismissed in the Previous Application.
The Respondent referred to the case of Anthony Hordern. I assume that the passage to which the Respondent referred is the following from the reasons of Gavan Duffy CJ and Dixon J:[13]
When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.
[13] Anthony Hordern at 7.
At 8 of Anthony Hordern, their Honours found that:
An affirmative grant of such a power, so qualified, appears necessarily to imply a negative. It involves a denial of a power to do the same thing in the same case free from the conditions and qualifications prescribed by the provision.
The passage in Wallis to which Respondent referred in his SFIC, from the judgment of Dixon J, at 550, is:
But upon some matters the Act does speak with more particularity. If it confers a specific power with respect to a limited subject or specifies a manner of dealing with it or otherwise provides what the duty or authority of the arbitrator shall be, then upon ordinary principles of interpretation the provision in which that is done should be treated as the source of his authority over the matter, notwithstanding that otherwise the same or a wider power over the same matter might have been implied in or covered by the general authority given by s. 38. This accords with the general principles of interpretation embodied in the maxim expressum facit cessare tacitum and in the proposition that an enactment in affirmative words appointing a course to be followed usually may be understood as importing a negative, namely, that the same matter is not to be done according to some other course.
This applies especially when the power or duty affirmatively conferred or imposed is qualified by some condition, limitation or direction.
In Plaintiff S4/2014, the High Court made the following observations relevant to this matter:
42. … As was said by four members of this Court in Project Blue Sky Inc v Australian Broadcasting Authority,[14] “[t]he meaning of [a] provision must be determined ‘by reference to the language of the instrument viewed as a whole”. And an Act must be read as a whole “on the prima facie basis that its provisions are intended to give effect to harmonious goals”. Construction should favour coherence in the law.
43. It is these fundamental principles which underpin what is sometimes called the “Anthony Hordern principle” and the proposition on which that principle depends: “that an enactment in affirmative words appointing a course to be followed usually may be understood as importing a negative, namely, that the same matter is not to be done according to some other course.”
(Footnotes omitted, emphasis added)
[14] (1998) 194 CLR 355.
The power of the Tribunal to reinstate an application that has been dismissed is specific and limited. In the case of an application that has been dismissed under s 42A(5) for an applicant having failed to comply with a direction of the Tribunal, the power of the Tribunal is limited to reinstating the application where the application was dismissed in error.
I agree with the Respondent’s characterisation of the restrictions imposed by ss 42A(10) and 42A(11) as representing a deliberate balance that the legislature has struck between affording fairness to an applicant, while also ensuring respect for the Tribunal’s procedural orders and directions. It would, in my view, defeat the purpose of the limitation on reinstatement imposed by s 42A(10) if an applicant could circumvent that limitation by simply making another application in exactly the same terms. If such a course were available, it would render the legislative scheme embodied in ss 42A(5) and 42A(10) of no effect. That would not deliver the legislative intent “to give effect to harmonious goals” under the legislation as found to be required by the High Court in Project Blue Sky Inc v Australian Broadcasting Authority and affirmed in Plaintiff S4/2014 (see [29] above).
In the present case, the application before me is an application for an extension of time to make an application for review. The Respondent has expressed its argument in terms of the Tribunal not having the power to extend time. Clearly the Tribunal has the general power under s 29(7) to extend time for the making of an application. However, that general power is restricted by the “imported negative” referred to in [43] of Plaintiff S4/2014 (see [29] above) imposing a restriction on the power under s 29(7) necessary to deliver harmonious goals under the AAT Act “by reference to the language of the instrument viewed as a whole” (Project Blue Sky; see [30] above). I find that in the present case the Tribunal does not have the power to extend time as sought by the Applicant.
Alternatively, and independently of the consideration of whether the Tribunal has the relevant power in the present circumstances, given that the application sought to be made by the Applicant is the same application that was dismissed under s 42A(5) and which the Applicant was unable to reinstate, given the restriction in s 42A(10) it would not be “reasonable in all of the circumstances to”[15] exercise the discretion to extend time.
[15] s 29(7).
Accordingly, I find that it is beyond the power of the Tribunal or, alternatively not appropriate in the present circumstances, to extend the time for the making of an application that is in the same terms as an application previously dismissed under s 42A(5) of the AAT Act.
DECISION
The application for an extension of time is dismissed.
I certify that the preceding 35 (35) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle
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Associate
Dated: 21 November 2023
Date(s) of hearing:
7 June 2023
Solicitor for the Applicant:
Mr Roger Blow, Cove Legal
Counsel for the Respondent:
Mr Paul Walker, Francis Burt Chambers
Solicitor for the Respondent:
Ms K McClurkin, Australian Taxation Office
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