JUDGMENT No. 5O..L.2.20 IN THE FEDERAL COURT OF AUSTRALIA ) VICTORIA DISTRICT REGISTRY ) No. VG248 of 1987 GENERAL DIVISTON ) BETWEEN: PETER MADNER Applicant THE: COMMISSIONER OF TAXATION OF THE: COMMONWEALTH OF AUSTRALIA Respondent - Jenkinson J. tant & Be aN Be Melbourne is 11 February, 1988 THE COURT ORDERS THAT: The time within which the applicant's request to refer the respondent's decision on the applicant's objection against the assessment of which notice was numbered 240912/002 in respect of the year ended 30 June 1980 may be lodged with the respondent be extended until 14 August 1987. The time within which the applicant's request to refer the respondent's decision on the applicant's objection against the assessment of which notice was numbered 240913/005 in respect of the year ended 30 June 1981 may *be lodged with the respondent be extended until 14 August 1987. The time within which the applicant's request to refer the respondent's decision on the applicant's objection against the assessment of which notice was numbered 240913/004 in respect of the year ended 30 June 1982 may be lodged with the respondent be extended until 14 August 1987. The time within which the applicant's request to refer the respondent's decision on the applicant's objection against the assessment of which notice was numbered 240911/005 in respect of the year ended 30 June 1983 may Zs be lodged with the respondent be extended until 14 August 1987. The time within which the applicant's request to refer the respondent's decision on the applicant's objection against the assessment of which notice was numbered 240911/004 in respect of the year ended 30 June 1984 may be lodged with the respondent be extended until 14 August 1987. The time within which the applicant's request to refer the respondent's decision on the applicant's objection against the assessment of which notice was numbered 240911/003 in respect of the year ended 30 June 1985 may be lodged with the respondent be extended until 14 August 1987. The resporident's casts of the proceeding be paid by the applicant. Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY } ) NO. VG248 OF 1987 GENERAL DIVISION ) BETWEEN: PETER MADNER Applicant AND: THE COMMISSIONER OF TAXATION oF THE COMMONWEALTH OF AUSTRALIA Respondent CORAM: Jenkinson J. DATE: 1l February, 1988 REASONS FOR JUDGMENT that requests to refer decisions on Applications objections to assessments of income tax he treated as having been lodged within time. tax agent lodged On a particular day the applicant's with the respondent the applicant's objection against each of six assessments of his income tax, in respect of the years ended 30th June 1980, 1981, 1982, 1983, 1984 and 1985. Written notice of the decision disallowing the objection in respect of each year was served on or about 30 May 1987. Section 187 of the Income Tax Assessment Act 1936 allowed the applicant 60 days after service of each notice as the period within which he might lodge with the respondent, in writing, either a request to refer the decision to or a request to refer the the Administrative Appeals Tribunal decision to this Court. By a single document the tax agent lodged 2. requests to refer the six decisions to this Court on 14 August 1987, several weeks after the expiration of that period of 60 days. The agent sent with that document another document included the following: "Application 1s hereby made for an extension of time to lodge the attached Appeals for the years ended 30th June, 1980 to 1385 inclusive." The resondent sent the latter document to this Court. which Tax Sub-sections (2) and (3) of 5.188 of the Income Assessment Act 1936 provide: "(2) Where the period for the lodgment by the taxpayer of a request under section 187 has ended, the taxpayer may, notwithstanding that the period has ended, send the request to the Commissioner together with an application in writing asking that the request be treated as having been duly lodged. (3) An application under sub-section (1) or (2) shall state fully and in detail the circumstances concerning, and the reasons for, the failure by the taxpayer to lodge the objection or request as required by this Act." Sections 188B and 189 provide: "188B(1) Where the Commissioner receives an application under sub-section 188(2), the Commissioner shall, as soon as practicable - (a) if the application relates to a request to refer a decision to the Tribunal - send the application to the Tribunal; or (b) if the application relates to a request to refer a decision to the 3. Federal Court - send the application to that Court. (2) The sending of an application to the Tribunal under paragraph (1)(a) shall, for the purposes of the Administrative Appeals Tribunal Act 1975, be deemed to constitute the making by the taxpayer concerned of an application to the Tribunal to extend the time within which the request may be lodged with the Commissioner. (3) The sending of an application to the Federal Court under Paragraph (1) (Db) constitutes the making by the taxpayer concerned of an application to that Court to extend the time within which the request may be lodged with the Commissioner. (4) The Tribunal or the Federal Court, as the case may be, may grant of refuse the application. (5) Where an application under sub-section 188(2) has been granted, the taxpayer shall, for the purposes of this Part, be treated as having duly lodged the request to which the application relates." "189(1) Where a taxpayer duly lodges, or is to be treated as having duly lodged, a request under section 187, the Commissioner shall comply with the request. (2) The referral of a decision on an objection to the Tribunal shall, for the purposes of the Administrative Appeals Tribunal Act 1975, be deemed to constitute the making by the taxpayer of an application to the Tribunal for review of the decision. (3) The referral of a decision on an objection to the Federal Court constitutes the instituting by the taxpayer concerned of an appeal against the decision." The document from which I have quoted was in my such an application as sub-section 188(2) comprehends phrase "an treated as opinion by the application in writing asking that the request be having been duly lodged", notwithstanding that the 4. document refers not to a single request, but to six requests. (See Acts Interpretation Act 1901, 5.23(b).) The word "application" in s.188B is in my opinion used in two senses. In sub-section 188B(1) and where 16 first occurs in each of the two succeeding sub-sections the word is to be understood as indicating the document which has been sent to the Commissioner in pursuance of the provision made by sub-section 188(2). In sub-section 188H(4) and where it secondly occurs in each af the two preceding sub-sections the word is to he understood as indicating the taxpayer's proceeding, in the Tribunal or in this Court as the case may be, for the extension of time which those sub-sections contemplate. So to understand the usage of the word "application" in 5.188B is to be left with an incongruous usage of the word in sub-section 188B(5). But that difficulty does not, I think, justify the discarding of the construction I have suggested. I prefer to allow to the same phrase, "an application under sub-section 188(2)", one meaning in sub-section 1888(1) and another meaning in sub-section 188B(5). 'If, as I think, it be a piece of paper which the Commissioner is directed by s.188B(1)(b) to send to this Court, but the institution of a proceeding inthe Court which his compliance with the direction effects, there is in my opinion no difficulty in conceiving that the sending of the piece of paper may effect the institution of more than one proceeding in the Court if the piece of paper relates to more than one request to 5. refer a decision. In this case the sending by the respondent of the document from which I have quoted in my opinion constituted the making by the applicant of six applications to the Court, each application being for an extension of the time within which the request to refer the respondent's decision on the applicant's objection against one of the six assessments may be lodged with the respondent. The verbiage of Division IV of Order 52A of this Court's Rules, by which procedural regulation of applications of the present kind is ordained, is in the singular, like the statutory verbiage I have quoted. But, as in the case of the statute, the plural would be understco to be included (see the Acts Interpretation Act 1901, ss. 23(b) and 46(a).), and O.52A would in my opinion have authorized the constitution in accordance with its provisions of six separate proceedings. In fact only one notice of hearing was filed (see 0.52A R.20), and the prescribed form of notice (see Form 55CB of the First Schedule) was modified to comprehend the plurality of requests to which the notice related. Only one serial number was assigned (see 0.1 R.6). Ina case such as this, where "the circumstances concerning, and the reasons for, the failure by the taxpayer to lodge the ...... request" are identical in respect of the six applications, no inconvenience will attend that course. If an application of the kind to which s.188B(3) refers is grounded, as I think it is, upon a "cause of action", within the meaning of that expression in Order 6, the joinder of the six applications in the one proceeding may be thought to have been authorized by 0.52A R.3 and 0.6 R.1., which provide as follows. 0.52A R.3. "Subject to this Order and to any law of the Commonwealth, the provisions of this Order and other Orders of these Rules apply, so far as is practicable, to proceedings to which the last preceding rule applies and, for the purposes of this Order and other Orders of these Rules, the applicant and the Commissioner shall be parties to the proceedings." An application of the kind which is here in question is a proceeding to which "the last preceding rule", in the sense of that phrase in 0.52A R.3, applies. 0.6 Rul. "Subject to rule 6 an applicant, whether claiming in the same or different capacities, may, in any proceeding, claim relief in respect of more than one cause of action." However, one may doubt whether the applicant had formed an intention to take advantage of 0.6 R.1, or had sufficiently communicated that intention by using one document rather than six documents in making the applications in writing which s.188(2) contemplates. If the combination of the six applications in the one proceeding involved any failure in compliance with a requirement of the Rules, I dispense with that compliance. (See 0.1 R.8.) Joinder of several causes of action may result in inconvenience when the constituent facts of each cause of action 7. are diverse. The inconvenience may be more easily avoided by eschewing joinder than by recourse, in respect of an inconvenient joinder, to 0.6 R.6, which provides: "Where any joinder of parties or of causes of action may complicate or delay trial of the proceeding or 1s otherwise inconvenient, the Court may order separate trials or make such other order as the Court thinks fit." The evidence justifies the granting of the six applications. In each case it will be ordered that the time within which the applicant's request to refer the Commissioner's decision on his objection to the assessment may be lodged with the Commissioner be extended until 14 August 1987. As to costs, I would have thought that the appropriate order was that the respondent's costs of the proceeding be paid by the applicant. That is the order I will pronounce. If the parties desire some other order as to costs, they may apply for a variation of the order as to costs, pursuant to 0.35 R.7. . I certify that this and the 6 preceding pages are a true copy of the Reasons for Judgment herein of the Honourable Mr. Justice Jenkinson. Associate Dated: 11 February, 1988 © wt eg ae Counsel for the Applicant Counsel for the Respondent - Solicitors for the Applicant Solicitors for the Respondent Date of Hearing 2 Mr. P.M. Borenstein Mr. V. Tavolaro Coltmans Australian Government Solicitor 12 October, 1987