CATCHWORDS Administrative law - review of respondent's decision to arant applicant's extension of time to pay recoupment tax - interlocutory relief - Gibbs C.J. in Australian Coarse Grains Case followed - no serious question to be tried Administrative Decisions (Judicial Review) Act NANCY JOAN JOHNS VY DEPUTY COMMISSIONER OF TAXATION No. G 330 of 1984 Morling Jd. 23 November 1984 Sydney IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION BETWEEN : AND; ORDER JUDGE MAKING ORDER 3 Morling J. DATE OF ORDER WHERE _MADE 23 November Sydney THE COURT ORDERS AS FOLLONS: 1. Application refused. No. G330 of 1964 NANCY JOAN JOHNS Applicant DEPUTY COMMISSIONER OF TAXATION Respondent IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. G331 of 1984 weer we GENERAL DIVISION BETWEEN : WARREN THOMAS JOHNS Applicant AND: DEPUTY COMMISSIONER OF TAXATION - Respondent ORDER JUDGE MAKING ORDER : Morling J. DATE _OF ORDER $ 23 November 1984 WHERE MADE 3 Sydney THE COURT ORDERS AS FOLLOWS: l. Application refused. aN IN THE FEDERAL COURT OF AUSTRALTA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION BETWEEN ; a AND: BETWEEN : AND: MORLING J. No. G320 of 1984 NANCY JOAN JOHNS Applicant DEPUTY COMMISSIONER OF TAXATION Respondent No. G331 of 1984 WARREN THOMAS JOHNS Applicant DEPUTY COMMISSIONER OF TAXATION 23 November 1904 REASONS FOR JUDGMENT These are tw applications to review decisions of the reapondent refusing extensicn of time to the applicants to pav recoupment tax to which they have been assessed. It 13 unnecessary to refer in any detail at this staqe to the actual decisions made by the respondent. The dec1zsions are said to have been made on 22 August 1984. However. as the historv of the matter will show in 30 far as any decisions were Made on or about 22 Auqust 1984 they appear to have been overtaken by letters which were furnished to the applicants during the course of today. It appears that whatever occurred Before 22 August 1984, about mid-September applications were certainly made to the respondent seeking extensions of time to pay the recoupment 'tax. On 23 November (that is to say, today) the respondent wrote to the solicitor for the applicants referrina to the request for extensions of time and advising him that the requests were refused. In letters of the same date the respondent furnished a statement of his reasons for his decisions to refuse the requests for extensions of time. Before I state mv conclusion on the applications before the Court. I cannot refrain trom expressing my displeasure that this matter has had to be heard today. The matter was in the list of some thirty-three matters for directions, and it waz in the list for directicns only. When the matter was called on for hearing, the applicant waz not aware of the terms of the letters of 23 November. Because I was umable to deal with the matter when the mattar was rirst called on, it wag stood down until tne arternccn. Arrarentir gome time later in the morning the letters were served upon the solicitor for the applicant. He received those letters some nine weeks atter he had written seeking an extension of time on behalf of his client. Ido not think any complaint can be made about the respondent's delay in furnishing a reply to the requests for extension of time. The respondent has onerous statutory functions to perform, and it is clear that he aave the applications conziderable thouqht before replying. But I think hiz insistence on the matter proceeding today is quite unreasonable. It was whollv reasonable for the applicants to seek 3ome time. even adav or so. to consider the terms cof the letters for which they had been waiting for nine weeks. Instead of affording the applicants' leqal advisers such a brief time. counsel for the resrondent was obliged to intorm the court that h13 instructions were that his client would sian judament in the preceedinas to which I will refer ina moment. at the earliest opportunity. And indeed 1t was said that fudgment would be saianed on Monday if the respondent was in a positicn to do so. Under those circumstances counsel for the apslicant had no alternative but to proceed forthwith to aek iw interlocutory relief. and the last two hours or so has been tow taken up with hearing that application. I think he could reasonably have expected. in view of the history of the matter. that the applications would not have proceeded today. But it has been necessary to hear them and I must deal with them. It appears that some time after the assessments which gave rise to the recoupment tax were issued. summonses were issued against the applicants in the District Court. What the applicants now seek in effect is an interlocutory order from the Court restrairiing the respondent from proceeding with the proceedings in the District Court pending the application before this Court under the Judicial Review Act. Notwithstanding the unsatisfactory way in which the matter is before the Court, and notwithstanding what I reaard as being the quite unreasonable attitude of the respondent. I must deal with the applications according to law. That i3 to say. before granting interlocutory relief. I must te satisfied that the applicants have shown that there 13 a 3erious question to be tried. and s3econdly that the balance of convenience lies in favour of arantina interlocutory relief. Although the decision of Gibbs CJ in the Australian Coarse Grains Case was not given in relation to a decision under the Judicial FRoview Act 1977. I think that what he there said as to the principles under which interlocutory relief should be granted should be applied to applications for interlocutory relief under the Judicial feviaw Act. 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 mav well be held to be entitled to relief under 3. S(l)(e), (f£) or (h) of the Act. As his araqument was developed. it really was that he relied upon s. 5(1)(e) as expanded by s. 5(1)(2)(f) and (qa). Notwithstanding the araqument put by him. Ido not think on the material presently before the Court that he has made out this limb'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 23 November (Exhibit 2) made out to the requisite degree the applicant's case under s. 5(1)(e) as expanded by 3. 5(2)(f)3 that 18 to say, that when the respondent exercised his diacretion under s. 206. he exercised it in accordance with a ruling or policy without regard to the merits of the applicant's particular case. However it zeems to me on a consideration of the whole matter, this cannot fairiv be said. What the respondent says in para. 9(b) of his letter is that he has auidelines. I do not think that there is sufficient evidence that his discretion to refuse the applications for time to pay the recourment tax depended upon hia decision merely to apply those auidelines without reqard to the merits cf the cass. Indeed, there i3 a great decal in his letter to indicate that that was not the case, cince many other matters are referred toa. It is only fair to say in favour of the Commissioner that there is some material in what was put to him 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 grant interlocutory relief. In 30 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 another application. What I have so far said makes it unnecessary for me to consider the balance of convenience. However, I am bound to 3ay that having heard counsel for the respondents I think it is anice question where the balance cf convenience lies in this case. I think there is substance in Mr Roberts' submission that the failure of these applications does not mean that the applicants are deprived of their riqhts3s to 3eek to persuade the District Court that they should be given time to pay any judgment, should a jdudament be entered against them. Nor. of course. does fatlure in these rcrocesdinas prevent the applicants from rezisting or seeking to delay proceedings in bankruptcy should they be commenced. om Notwithstanding these considerations I think that on balance, I would have been minded to arant 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 for that reason the applications will be refused. 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