CATCHWORODS ADMINISTRATIVE LAW - order remitting decisions for reconsideration - further decisions made in consequence - mode of attack on further decisions - whether necessary to bring new proceedings under Administrative Decisions (Judicial Review) Act 1977. INCOME TAX ~- extension of time for payment - additional tax charged - alleged repugnancy of two relevant provisions of Tax Act. Administrative Decisions (Judicial Review) Act, 1977 ss.5, ll, 13 Income Tax Assessment Act, 1936 ss.206, 207 A.R.M. Constructions Pty. Limited v. The Deputy Commissioner of Taxation N.S.W. G195 of 1985 E. & M. Ghosn Pty. Limited v. The Deputy Commissioner of Taxation N.S.W. G196 of 1985 BE. & M. Ghosn (Developments Pty. Limited v. The Deputy Commissioner of Taxation N.S.W. G197 of 1985 E. & M. Ghosn (Builders) Pty. Limited v. The Deputy Commissioner of Taxation N.S.W. G198 of 1985 PINCUS J. SYDNEY 12 SEPTEMBER 1986 IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) GENERAL DIVISTON BETWEEN : BETWEEN oo AND: BETWEEN : AND: BETWEEN : JUDGE MAKING ORDER: DATE OF ORDER: N.S.W. G195 of 1985 A.R.M. CONSTRUCTIONS PTY. LIMITED Applicant THE DEPUTY COMMISSIONER OF TAXATION Respondent N.S.W. G196 of 1985 E. & M. GHOSN PTY. LIMITED Applicant THE DEPUTY COMMISSIONER OF TAXATION Respondent N.S.W. G197 of 1985 E. & M. GHOSN (DEVELOPMENTS) PTY. LIMITED Applicant THE DEPUTY COMMISSTONER OF TAXATION Respondent N.S.W. G198 of 1985 E. & M. GHOSN (BUILDERS) PTY. LIMITED Applicant THE DEPUTY COMMISSIONER OF TAXATION Respondent MINUTES OF ORDER PINCUS J. 12 SEPTEMBER 1986 WHERE MADE: SYDNEY THE COURT ORDERS THAT: z 1. The notices of motion in G195/1985 and G196/1985 be struck out. The applicants pay the respondent's costs of the said notices of motion, to be taxed. The applicants in G195/1985, G196/1985, G197/85 and G198/85 be given leave to bring proceedings under the Administrative Decisions (Judicial Review) Act 1977 on or before 26 September 1986 to review the decisions of the respondent of the 29 July 1986 on grounds other than that implied by order number 3 aun the notices of motion filed on 21 August 1986 in G195/1985 and G196/1985. Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. . IN 'THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) GENERAL DIVISION ) N.5.W. G195 of 1985 BETWEEN ae A.R.M. CONSTRUCTIONS PTY. LIMITED Applicant AND: THE DEPUTY COMMISSIONER OF TAXATION Respondent N.S.W. G196 of 1985 BETWEEN: E. & M. GHOSN PTY. LIMITED Applicant AND: THE DEPUTY COMMISSIONER OF TAXATION Respondent N.S.W. G197 of 1985 BETWEEN: E. & M. GHOSN (DEVELOPMENTS) PTY. LIMITED Applicant AND: THE DEPUTY COMMISSTONER OF TAXATION Respondent N.S.W. G198 of 1985 BETWEEN: E. & M. GHOSN (BUILDERS) PTY. LIMITED Applicant AND: THE DEPUTY COMMISSIONER OF TAXATION Respondent PINCUS J. 12 SEPTEMBER 1986 EX TEMPORE REASONS FOR JUDGMENT I have before me notices of motion in identical terms. Each seeks an order declaring that the respondent failed to act in accordance with orders of this court made on 3 April 1986, an order setting aside the respondent's decisions purporing to have been made pursuant to ss.206 and 207 of the Income Tax Assessment Act 1936, and an order declaring that the provisions of ss.206 and 207 of the said Act are mutually repugnant and to the extent of such repugnancy are invalid or inoperative. The previous decision of this court to which the notices of motion refer was one of Burchett J. of 3 April 1986. His Honour had before him applications under the Administrative Decisions (Judicial Review) Act in respect of four taxpayers who attacked decisions of the respondent refusing extensions of time pursuant to s.206 of the Income Tax Assessment Act 1936, The result of that case was that decisions of the respondent were set aside and the applications which were the subject of those decisions were remitted for further consideration in accordance with law. Some months later - to be precise, on 29 July 1986 - the respondent wrote to the solicitors for the applicants a letter referring to the decision of Burchett J., apologizing for the time taken to act in accordance with that decision and making certain further decisions. They were in substance: to grant an extension of time in respect of part of the tax the subject of the relevant assessments; to refuse an extension in respect of another part; and to impose what is described as "the statutory additional tax for late payment", calculated from the original dates, on the balance finally found to be payable. Counsel for the applicants, Mr. Pape, has infarmed me that he desires to treat the notices of motion as having been filed in respect of each of the four applicants who were successful before Burchett J., and I do not understand that course to be opposed by counsel for the respondent. The latter counsel, however, argues that the proceedings are misconceived and that the only way of attacking the decisions of the respondent made on 29 July 1986 is by making further application under s.1l of the Administrative Decisions (Judicial Review) Act. Counsel for the applicants says that this is unnecessary, that the notices of motion are ancillary to the decision of Burchett J. and that the applicants do not have to start again. I have not discovered any authority dealing with the question. It seems to me to depend primarily upon the terms of the Administrative Decisions (Judicial Review) Act 1977. That creates aright, by s.5, in persons aggrieved by decisions to which the Act applies, to apply for orders of review. It appears to me that the decisions of 29 July 1986 are decisions to which the Act applies. Section 11(1), referred to above, says that an application to the court for an order of review is to be made in the manner prescribed by the rules of court and is to set out the grounds of the application. Rules of court have been made and are to be found in 0.53. It is clear that s.1l1 has not been complied with and the non-compliance is not merely that no application has been made under the Administrative Decisions (Judicial Review) Act, but the grounds of the applications are nowhere set out; only the relief sought is to be found in the notice of motion. Departing somewhat from the procedural issues which have been raised by the respondent, it should be mentioned that counsel for the applicants told me that he pressed the submission with respect to ss.206 and 207 of the Income Tax Assessment Act. He also argued, independently of that, that the decisions of 29 July 1986 were an unlawful exercise of discretion because relevant matters had not been taken into account. He also seemed to say, although did not develop this, that in some or all respects the decisions were unreasonable, presumably having in mind s.5(2)(g) of the Administrative Decisions (Judicial Review) Act. In my opinion there is nothing in the argument with respect to the alleged invalidity of ss.206 and 207, on the ground mentioned. Counsel for the respondents said that he 1s not ready today to debate that point, but it does not appear to me that I should put him to the trouble of preparing to do so. In essence, what counsel for the applicants suggested was that because s.206, read by itself, would make the reader think that a certain system was being instituted which s.207 seems to controvert, then the latter provision must be wholly or in part invalid. It 1s true that there are expressions in s.207 that do not sit well with those in s.206. There is, however, not the slightest difficulty in reading the two together, that is, reading s.206 subject to s.207. I do not propose, therefore, to make any order which would facilitate the pursuit of that point. Counsel for the respondent said that he could argue the administrative law point simply enough by saying that the decisions does not themselves disclose any invalidity, no reasons for the decisions having been sought under s.13 of the Administrative Decisions (Judicial Review) Act. It seems to me, however, that I should require the matter to be put ona proper footing. As I understood counsel for the respondent, while by no means waiving any other procedural rights, he did not raise any time point. It appears to me that the appropriate course is to strike out the notices of motion and to grant leave to the applicants, pursuant to s.ll of the Administrative Decisions (Judicial Review) Act, to make applications on or before 26 September 1986 to review the decisions of the respondent of 29 July 1986, on grounds other than those implied by order no. 3 in the notice of motion before me (that is, invalidity of s.207 on the basis of repugnancy). In fixing the time I have in mind that the matter has to date proceeded, so far as the respondent is concerned, in rather a leisurely fashion and it seems unlikely that the allowance of two weeks will unduly disadvantage the respondent. The orders therefore will be that notices of motion in G195 and 196 be struck out; that the applicants pay the respondent's costs of those notices of motion to be taxed; that the applicants in each of the four matters, that is G195, 196, 197 and 198 of 1985 have leave to bring such proceedings under the Administrative Decisions (Judicial Review) Act on or before 26 September 1986 as I have referred to above. i certify that this and the S" preceding pages are a true copy of the reasons for judgment herein of His Honour Mr Justice Pincus Z x Lyo~e Associate "Dated /2 hope beer 1986