Tey v Commissioner of Taxation [2007] FCA 920

FEDERAL COURT OF AUSTRALIA

Tey v Commissioner of Taxation [2007] FCA 920 APPEAL – PROCEDURE – application for extension of time to file and serve notice of appeal – unsatisfactory explanation for delay – proposed appeal without merit. APPEAL – COSTS – costs follow event - discretion Taxation Administration Act 1953 (Cth), s 298-20 Hughes v Western Australian Cricket Assn Inc (1986) ATPR 40-748 Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 Jess v Scott (1986) 12 FCR 187 Parker v The Queen [2002] FCAFC 133 KOK YONG TEY v COMMISSIONER OF TAXATION WAD24 OF 2007

GILMOUR J

18 JUNE 2007

PERTH IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY WAD24 OF 2007

BETWEEN: KOK YONG TEY

Applicant

AND: COMMISSIONER OF TAXATION

Respondent

JUDGE: GILMOUR J DATE OF ORDER: 18 JUNE 2007

WHERE MADE: PERTH

THE COURT ORDERS THAT:

The application be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY WAD24 OF 2007

BETWEEN: KOK YONG TEY

Applicant

AND: COMMISSIONER OF TAXATION

Respondent

JUDGE: GILMOUR J

DATE: 18 JUNE 2007

PLACE: PERTH

REASONS FOR JUDGMENT 1 The applicant, Kok Yong Tey, seeks an extension of time to file and serve a notice of appeal, pursuant to O 52 r 15(2) of the Federal Court Rules. The proposed appeal is from a judgment of Lander J made on 4 September 2006. The application for leave is dated 31 January 2007. Accordingly, the applicant is in delay in a period of a little more than four months. The application is supported by an affidavit sworn by the applicant on 31 January 2007. The applicant deposes that she has been, and is still acting in person, has no legal training, qualification or skills and is unable to afford the cost of instructing solicitors and a barrister to act for her in relation to the appeal. The explanation for the lengthy delay is that she was engaged in seeking to resolve the issue of costs ordered against her in her unsuccessful appeal before Lander J. She states that the respondent's solicitor wrote to her by letter dated 1 November 2006 asking her to pay the costs and in respect of which she sought advice from a barrister regarding the amount of such costs. She then deposes that she received a letter from this Court dated 24 November 2006 informing her about the amount of costs to be allowed, as to which she sought and obtained advice. As a result of the advice given to her she decided not to seek review of the amount of costs awarded. Beyond that there is no further explanation for the delay. 2 Her affidavit contains a draft Notice of Appeal to which I refer in detail later in these reasons. 3 The application is opposed by the respondent and supported by an affidavit sworn by Fiona Anne Humphries on 16 February 2007.