FEDERAL COURT OF AUSTRALIA Denise Lesley Modini v Tax Agents Board of Queensland [2005] FCA 570 APPEALS – decision of the Administrative Appeals Tribunal – application for extension of time to bring appeal – factors relevant to granting extension of time – merits of the substantial application – no error of law identified – appeal dismissed Statutes Income Tax Assessment Act 1936 (Cth) s 251 BC Cases Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 58 ALR 305 Considered DENISE LESLEY MODINI v TAX AGENTS BOARD OF QUEENSLAND QUD 70 OF 2005 KIEFEL J BRISBANE 6 MAY 2005 IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY QUD 70 OF 2005 ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: DENISE LESLEY MODINI APPLICANT AND: TAX AGENTS BOARD OF QUEENSLAND RESPONDENT JUDGE: KIEFEL J DATE OF ORDER: 6 MAY 2005 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. The application for an extension of time within which to bring an appeal from the decision of the Administrative Appeals Tribunal dated 30 April 2004 be dismissed. 2. The applicant pay the respondent's costs of the application, including any reserved costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY QUD 70 OF 2005 ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: DENISE LESLEY MODINI APPLICANT AND: TAX AGENTS BOARD OF QUEENSLAND RESPONDENT JUDGE: KIEFEL J DATE: 6 MAY 2005 PLACE: BRISBANE REASONS FOR JUDGMENT 1 The applicant seeks an extension of time within which to bring an appeal from a decision of the Administrative Appeals Tribunal ('the Tribunal') of 30 April 2004. The application was filed in this Court on 15 March 2005, well after the time limited for the bringing of an appeal. 2 Amongst the factors relevant to a consideration of a grant of an extension of time are the provision of an acceptable explanation for the delay and that it would be fair and equitable in the circumstances to extend the time. Regard may also be had to the merits of the substantial application: see Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 58 ALR 305. 3 The applicant offers the following explanation. At some time in May 2004 she telephoned the Federal Court and spoke to an officer at the Court. She says that she advised that person that she was on Centrelink benefits and had a healthcare card. She was then told that it would cost her approximately $1500 to bring the application and that costs might be awarded against her. She felt she could not afford these costs. Since that time she says that she has been encouraged to bring this matter in the Federal Court by members of the Tax Agents Board of Queensland and the President of the Tribunal. On her case, encouraged by these advices, she again contacted the Federal Court in one last attempt to see what could be done. That was not until Wednesday 9 March 2005. She informed a different person that she had a healthcare card and was told that fees could be waived. 4 The respondent does not suggest that it is prejudiced by the delay itself. It does however say that it is prejudiced in its ability to consider the case brought against it because no coherent case is made out. More particularly, there is no error of law identified as is required for an appeal such as this. 5 Even on a fair reading of the applicant's initial proposed Notice of Appeal, no error of law is identified on the part of the Tribunal. Her complaint is of a factual nature. It is that she had more experience qualifying her as a tax agent than other successful applicants and that she had done the work required. In that regard, I note from the Tribunal's decision that reg 156 (1) of the Income Tax Regulations to the Income Tax Assessment Act 1936 (Cth) ('the Act') provides that a person shall have certain academic requirements to be a tax agent and shall have been engaged in 'relevant employment' on a full time basis for not less than a total of 12 months in the preceding five years. 'Relevant employment' is defined to include certain types of work (reg 156 (2)). The Tribunal determined that the work the applicant had undertaken did not qualify as a substantial involvement in a broad range of income tax matters, as the regulation required. This may have resulted from the fact that she had had relatively short periods of employment with a number of employers. With one exception no employer attested to her competence. 6 When the matter came before me for directions on 22 April 2005 the deficiencies in the applicant's proposed Notice of Appeal were discussed with her. It was explained that she needed to identify not only an error in the Tribunal's reasoning but an error of law and she was given one week to reconsider her Notice of Appeal and re-draft it. 7 The document which was subsequently produced at the adjourned hearing of the application for extension on 29 April 2005 was not in any substantial sense different from the former document. The only reference in each of them to something approaching matters of law were the assertions that the Tribunal's decision contradicts 'the legislation – s 251 BC of the Income Tax Assessment Act 1936 [and] legal precedent'. Upon questioning the applicant, it appeared that 'legal precedent' was a reference to cases before the Tribunal where other persons had been successful. No relevant legal principle was identified. These cases appear to turn on their own facts and in any event formed no part of the Tribunal's reasoning. The reference to the legislation was in error. Section 251 BC of the Act simply states that a person is not a fit and proper person to prepare income tax returns if they do not hold prescribed qualifications. Those qualifications are referred to in reg 156 which were dealt with by the Tribunal as questions of fact, guided by its understanding of what it understood the regulation to require. 8 At the hearing on 29 April 2005 Ms Modini sought further time to enable her to obtain advice as to whether an error of law could be identified. Why she had not already done so, if she had intended to do so, was not explained. With some reluctance and on terms as to costs, I permitted her to file a further proposed Notice of Appeal with short supporting submissions by 4 May 2005. 9 The document refers again to s 251 BC of the Act and to reg 156 (1). It does not appear to have had the input of a legally trained person. The applicant's contention is that she was employed for the requisite period. She says that it is not necessary that she be employed by the one employer for this time. I do not understand the Tribunal to suggest this. 10 So far as concerns the requirements of reg 156, the applicant continues to argue that she is as qualified, if not more so, than other successful applicants. The applicant argues that the numbers of returns she did, qualify as 'substantial involvement'. Further, her experience as an accountant should have been taken into account in considering what tax work she was capable of doing. CONCLUSION ON APPLICATION 11 Officers of the Registry who are alleged to have given the initial advice are of course not in a position to recall every conversation with litigants. I would however be very surprised if the advice had been given in the terms that Ms Modini now suggests. However she did not bring an application when she was obviously motivated to do so and it may be that there was some confusion in the advice she received. I therefore accept that she was somehow confused about the financial requirements for the bringing of an application. It did not appear to me to be sensible that she would come back to the Court and ask again, having been given this information but she says that she wanted to give it one more go and had been apparently encouraged by others to do so. I say nothing about the likelihood that they actually recommended the bringing of an application in this Court as she suggests. 12 With some reluctance I would be prepared to accept the explanation as an acceptable one. I am not however in a position to conclude that the applicant has any prospects of success on the appeal. She has been unable to identify any error of law and the proposed Notice of Appeal does not disclose a case for appeal. 13 The applicant's contentions are addressed by the Tribunal's finding of fact, which include its opinion as to what sort of experience may properly be taken into account and when the requirements of the regulation may be said to be satisfied. No error of law concerning the application of the regulation is identified. 14 The application for extension of time must be dismissed with costs. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel. Associate: Dated: 6 May 2005 For the Applicant: In person Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 29 April 2005 Date of Judgment: 6 May 2005