IN_ THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY LIMITED DISTRIBUTION No. G244 of 1986 GENERAL DIVISION ) ) ) } } JUDGE: DATE OF ORDER: WHERE MADE: BETWEEN : ROBEPT WILLIAM WATERHOUSE Applicant AND: THE DEPUTY COMMISSIONER OF TAXATION, PARRAMATTA, OF THE COMMONWEALTH OF AUSTRALIA Respondent MINUTE OF ORDER FOX J. 16 SEPTEMBER 1986 SYDNEY. THE COURT ORDERS THAT: 1. Note: The applicant's motion dacred 27 Aucust 1986 he dismissed. of the motion. The applicant pay the respondent's costs The applicant's oral application for an extension of time to file Aan application for order of an order of review be dismissed. The application for an order of review dated 11 Tine 19Bs be dismissed. The applicant pay the respondent's costs of applications (2) and «4) the costs to include the respondent s abiection ta competency dated 2 Julv 1986 Settlement and entrv of orders 15 dealt "ith in Order 36 of the Federal Court Rules. LIMITED DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA } ) NEW SOUTH WALES DISTRICT PEGISTPY ' ) GENERAL DIVTSTON , No. G243 of 1986 BETWEEN: WILLIAM STANLEY WATERHOUSE Applicant AND: THE DEPUTY COMMISSIONER OF TAXATION, PARRAMATTA , OF THE COMMONWEALTH OF AUSTRALIA Respondent No. G244 of 1986 BETWEEN: ROBERT WILLIAM WATERHOUSE Applicant AND: THE DEPUTY COMMISSIONER OF TAXATION, PARRAMATTA, OF THE COMMONWEALTH OF ANSTRALIA Respondent CORAM: FOX J, DATE : 16 AEFTEMBER 19286 REASONS FOP TMGMENT 'EZ TEMPOPE: ooh Robert William Waterhouse and William Stanlev Waterhouse have each made two applications which are before me. The material relating to the situation of the two persons 15 identical. It is only necessarv to discuss one in order to dispose of both. So far as necessary T will refer to the Material in the case of Robert William 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 agreed that the applications had to fail. It was said by counsel that the application had been made on the basis that at a hearing, assuming proceedings for review went ahead. the fact that a statement under the section had been sought was relevant. I sav nothing as to this proposition except to point out that it relates to evidence and does not Justifv substantive applications such as fhe present. I therefore dismiss the applications to extend the time in which a statement under section 13 may be souaqht. The more substantial matter concerns the review of a decision of Fhe respondent made on 22 April 1935 notified bv a formal notice of that date, given under s.264 of the Income Tax Assessment Act 1936. The matter comes before "he court, however, uu) not by way of an application to extend the time in which an application for review of that decision 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 filed on 11 June 1986, plainly is incompetent. in the sense that it 1s well out of time. However, counsel for the applicants has orally applied to-day, before me, for an extension of the time in which the application mav be made for review, The application for review which has been filed lacks detail but it is my understanding that the substantial around sought to be arqued is that the time given in the notice issued on 22 April 1985 was unreasonably short. It sought a very wide ranae of information to be supplied on or before 29 Mav 1985. This was indeed a short time, but the evidence does not enable me to sav that it was so unreasonable that the notice should be reqarded as invalid. or, although the matter was not put this wav, that there is a aood arquable case that 1t 18 invalid. The case has not been presented on the footing that firther evidence ius ta be addressed, but rather on the footina Fhat the existing material proves the unreasonableness. An important factor 1s that the respondent soucht the same information both orally and by a written communication in February 1985. The evidence in supeort of the applicants' case is to be found in the affidavit of Mr Potts who was a tax agent who acted for both applicants. So far as appears thev left the whole situation in his hands and in his affidavit he has pointed out the difficulties he had sm far as the availabllitv of his time was concerned in acquiring the necessary information and answering 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 aoing 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 within time, is not a matter upon which my conclusion at this stage can safely be reached. It seems to me therefore that the main essence of the applicant's case in reaqard to this matter must fail: at least T cannot be satisfied that there is a suffficientlv sound case that 1t could succeed. There are other important considerations. IT have mentioned that the notice was ussued on 22 April 1985 and that fhe application for review was made on 1l June 1986. and no Application -of extension of time to file that application was made until tne matter came before the Court tadav. Ther2 18 no axplanation as to why the application for rev1er "az cur of time or beina out of time why an application was not made for extension of time. Counsel for the applicants proffers an e®xplanation '(not appearing from the evidence) which he savs 15 chat it was oniv in the course of proceedinas in the Magistrates court, relatina to the applicants' default under the notice, that 1t 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 be helpful to his case, or to account for the farlure to applv manv months ago for an extension of time. If the notice was to be challenged, there was leqislation now relied upon as enabling this to be done. The time to do it was when the notice was received, or, at least within a short time thereafter. To relv upon a belief that a Court before which a penaltv was sought would not enforce it was to turn one's back on the leaqislation in question, and to disclose iqnorance of s.9 of the Act. The evidence indicates That the applicants were frequentiv asked to provide the aiunformation. In the course of Ene proceeding ain rhe locai court an tindertaking was aiven bv senior ceunsel that a substantial amount of material in answer toa the natirt2 would be provided within 28 davs. 21l1l we know about Thar «ts tnat tt was not prewided. There 18 ne avident= that the notice has to this date been satisfied. The question of prejudice to the parties was debated. The prejudice to the applicants if the present application fails will be that the proceedings in the local court can continue in That reqard and a fine. imprisonment or both can be imposed. What course the court miaht take is of course a matter for it and it may be influenced bv whether or not the information souqht has been furnished. The prejudice to the respondent is rather that of an authority which has the responsibility for collecting tax and to this end obtaining 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 throuqh them has suffered some prejudice by their failure to comply with the notice. I sav this because it can be too readilv thoudht that a public authoritv does not reallv suffer "prejudice" in the relevant sense. T think that is wrond, at least in a case such as the present. I am afraid that mv present conclusion on the facts would be that there 1s a lack of qenuineness in the application made. Tt appears to me that there 1s not a real concern about the notice, or the time it allowed. It 1s recoanised that the respondent is =ntitled to have the information, and promises have from time to rime been made ta provide it, or part of 1t. What 1s soucht is to impede action by the respondent to qaet it. or aet all of it. If it had all been supplied by now, there would be little if anv point in the present application. Seeminaly, the applicants are indulging in delaying 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 vear. 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, again with costs. Anything else? DR FLICK: I do not think there is anything further, vour Honour. MR LEWIS: No, vour Honour, HIS HONOUR: I suppose it is right to say that the applications are incompetent - incompetence for want of being filed in time. The other thina is to order their dismissal, and perhaps that is what TI should do, rather than talk about competence. Competence raises questions of - normallv raises questions of definition of decision and suchlike matters. DR FLICK: Tf vour Honour were prepared to make orders i. HIS HONOUR: Psasons for 42 qastsce fOrA cag ) « Mr. t cert2f . preceding P4> both cases dismissing the applications, there would be no ambiauitv in that at all. I fhank that is what I will do. Instead of makina anv order about lack of competence I will lust dismiss the applications. Iwill dismiss them with costs, and the costs are to include the costs af the applications based on lack of es are & competence, and Lain dg and oS 7s ang y that 18 grne copy of th ' agnen* hes