Federal Court Dismisses Tax Appeal Due to Procedural Issues

OUTCOME: Dismissed

FEDERAL COURT OF AUSTRALIA

[APPELLANT] v Commissioner of Taxation [2007] FCA 1026 TAXATION – appeal from objections decision – first application filed by the applicant while subject to an [[[NAME]]] order under Guardianship and [[[NAME]]] Act 1990 (WA) – whether application validly filed – selective attention by respondent to role of administrator – alleged advice from Department for first application to be made in [[NAME]] of applicant - second application filed outside time limit – whether any power to extend time

Administrative Appeals Tribunal Act 1975 (Cth) ss 29, 29(7) Taxation [[NAME]] Act 1953 (Cth) s 14ZZN Guardianship and [[NAME]] Act 1990 (WA) ss 64, 69, 69(3), 71, 77, 84 Guardianship and [[NAME]] Act 1986 (Vic) s 52 Re Barnes [1983] 1 VR 605 [[NAME]] v [[NAME]] of Taxation (1999) 100 FCR 138 [[NAME]] by Her Tutor the Protective Commissioner v [[NAME]] (1993) 30 NSWLR 417 Re "DDM" file number 02/0352; Ex Parte the Full Board of the [[NAME]] (2003) 27 WAR 475 Johnson v Staniforth [2002] WASCA 97 [COMPANY] v Commissioner of Taxation (1994) 28 ATR 47 [[NAME]] v [COMPANY]) [COMPANY] [2005] VSCA 233 [[NAME]] v [COMPANY]) [APPELLANT] [2006] HCATrans 169 [APPELLANT] v COMMISSIONER OF TAXATION WAD 51 OF 2007

NICHOLSON J

5 JULY 2007

[APPELLANT] IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY WAD 51 OF 2007

BETWEEN: [APPELLANT]

Applicant

AND: COMMISSIONER OF TAXATION

Respondent

[APPELLANT] OF ORDER: 5 JULY 2007

[APPELLANT]

THE COURT ORDERS THAT:

1. The application dated 8 February 2007 filed on 8 March 2007 be dismissed.

2. The application dated 5 April 2007 and received on that date be dismissed.

3. Costs reserved for submission by each party, the respondent to file and serve written submissions on costs within 7 days if he intends to seek costs and the applicant to file and serve written submissions in response within 7 days of service of the respondent's submissions. 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 WAD 51 OF 2007

[APPELLANT]

Applicant

AND: COMMISSIONER OF TAXATION

Respondent

JUDGE: NICHOLSON J

DATE: 5 JULY 2007

PLACE: [APPELLANT] FOR

JUDGMENT 1 By an application (the first application) dated 8 February 2007 and filed on 8 March 2007 the applicant seeks to appeal against the objection decision described as follows: 'Objection Reference Number: 5524626 against Amended Assessment on 02 November 2006 for the following periods: Year ended 30 June 1993 Year ended 30 June 1994 Year ended 30 June 1996' The first application states that the manner in which the decision is to be varied is: 'By allowing the objection lodged to the extent of allowing the following interest deductions: $30 000 for Year ended 30 June 1993 $40 200 for Year ended 30 June 1994 $43 000 for Year ended 30 June 1996' 2 By a further application (the second application) dated 5 April 2007 and received at the Court on that date but not treated as filed the applicant again asserted an appeal in the same terms. 3 The respondent contends that the first application was not valid because at the time it was made the applicant was subject to an [[NAME]] order under the Guardianship and [[NAME]] Act 1990 (WA) (the Act). The respondent further contends that the second application is not valid because it is out of time and there is no power to extend time. 4 The applicant contends that the respondent was aware at all times that he had an administrator appointed but chose to exclude the administrator from the proceeding on numerous occasions and only now relies on the appointment of the administrator when the effect of it may be to preclude the applicant appealing to this Court. He also alleges he made the first application in his own [NAME] on advice from an officer of the respondent's department, the [[NAME]]. He claims that the effect of the respondent's contentions being upheld would be to condemn him to bankruptcy without any right of appeal. 5 The respondent relies on written submissions and on the affidavit of [NAME] [[NAME]], a level 5 Australian public servant employed in the Legal Services Branch, Debt Litigation Area of the Northbridge Office of the [[NAME]] and an affidavit of [NAME] [[NAME]], the Acting Director of the [[NAME]] in the Upper Mount Gravatt Office of the [[NAME]] and, at the time of her dealings with the applicant, a Technical Advisor in that Unit. 6 The applicant relies on submissions to the effect set out above and on his affidavit.

THE [[NAME]] ORDER

History of the [[NAME]] orders 7 At the time the applicant filed the first application he was subject to an order under the Act made by the State Administrative Tribunal (the Tribunal) on 11 April 2006 which provided that: [[NAME]] [[NAME]] of [ADDRESS], Kardinya, Western Australia be appointed limited administrator of the [APPELLANT] of the [[NAME]] with the following functions: (a) The administrator is to bring and defend action, suits and other legal proceedings in the [[NAME]] including the power to settle such actions.' 8 The [[NAME]] order made on 11 April 2006 was made on review under s 84 of the Act of an earlier [[NAME]] order dated 11 April 2005. 9 The [[NAME]] order made on 11 April 2006 was itself reviewed under s 84 of the Act by the Tribunal on 4 April 2007 and was revoked on that day. 10 Although the [[NAME]] order of 11 April 2006 does not set out in its terms the basis upon which that order was made, that is set out in an earlier [[NAME]] order made by the [[NAME]] (the predecessor of the Tribunal under the Act), on 18 November 2002. This order was itself an order made upon review of an earlier [[NAME]] order dated 27 April 2000. The [[NAME]] order of 18 November 2002 which appointed a limited administrator on the same basis as the [[NAME]] order of 11 April 2006, sets out that the [[NAME]] was satisfied that the applicant: [redacted] (b) is in need of an administrator of his [APPELLANT]; and (c) cannot have such need met by other means less restrictive of his freedom of decision and action.'

Relevant statutory provisions 11 The Tribunal is empowered to make an [[NAME]] order under s 64 of the Act. That section relevantly provides: '64(1) Subject to section 4, where the State Administrative Tribunal is satisfied that [[NAME]] in respect of whom an application for an [[NAME]] order is made under section 40 – (a) is [APPELLANT], by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of his [APPELLANT]; and (b) is in need of an administrator of his [APPELLANT], the Tribunal may by order declare the person to be in need of an administrator of his [APPELLANT], and if it does so shall appoint- (c) [[NAME]] to be the administrator; or (d) persons to be joint administrators, as the case may require, of the [APPELLANT] of the person in respect of whom the application is made. (2) Where under subsection (1) the State Administrative Tribunal declares that [[NAME]] is in need of an administrator of his [APPELLANT], it shall declare the matter or matters set out in paragraph (a) of that subsection of which it is satisfied. (3) An appointment under subsection (1) – (a) may be made subject to such conditions and restrictions as the State Administrative Tribunal thinks fit; (b) may, subject to section 52 of the [[NAME]] Act 1941, include requirements as to the giving of security to the executive officer and the manner in which it is to be given. [(c) deleted].' 12 Section 84 of the Act empowers the Tribunal to review orders periodically and provides: '84. The State Administrative Tribunal shall – (a) when it makes a guardianship order or an [[NAME]] order or any order amending, continuing or replacing an order specify a period, not exceeding 5 years from the date of the order, within which the order shall be reviewed; and (b) ensure that the order is reviewed accordingly.' 13 Section 69 of the Act deals with the authority of the administrator and provides: '69(1) Subject to section 64(3)(a), the administrator has, or the joint administrators have, in respect of the [APPELLANT] of the [[NAME]], such of the functions provided for by this Act as the State Administrative Tribunal vest in him or them, or directs him or them to perform, in the [[NAME]] order. (2) An administrator may on behalf of a [[NAME]] execute all such documents and do all such things as are necessary for the performance of the functions vested in him. (3) An action taken, decision made, consent given or other thing done by an administrator in the performance of the functions vested in him has effect as if it had been taken, made, given or done by the [[NAME]] and he were of full legal capacity. (4) Nothing in this Act vests the [APPELLANT] of a [[NAME]] in an administrator.' 14 Section 71 of the Act deals with the authority which may be confirmed on an administrator and provides: '71(1) The State Administrative Tribunal may, under section 69, vest plenary functions in the administrator of the [APPELLANT] of a [[NAME]]. (2) Where plenary functions are vested in an administrator he may perform, or refrain from performing, in relation to the [APPELLANT] of the [[NAME]], or any part of the [APPELLANT], any function that the [[NAME]] could himself perform, or refrain from performing, if he were of full legal capacity. (3) Where the State Administrative Tribunal does not under section 69 vest plenary functions in an administrator, it may, under that section, authorise the administrator to perform any specified function, including one or more of those set out in Part A of Schedule 2. (4) The State Administrative Tribunal may require a function to be performed by an administrator and may give directions as to the time, manner or circumstances of the performance. (5) In exercising its jurisdiction, under this Part the State Administrative Tribunal may take a liberal view of the best interests of the [[NAME]] as mentioned in section 4(2)(a), and in particular may, if the circumstances so require, empower an administrator to make a payment or enter into a transaction of a kind described in section 72(3) on behalf of the [[NAME]].' 15 Part A of Sch 2 to the Act which sets out the various specified functions includes at item 15 the following function: '15 To bring, and defend, actions, suits and other legal proceedings in the [[NAME]].' 16 Section 77 of the Act is in the following terms: '77 [[NAME]] incapable of dealing with [APPELLANT] (1) So long as there is in force a declaration by the State Administrative Tribunal under section 64(1) that [[NAME]] is in need of an administrator of his [APPELLANT], that person is – (a) incapable of entering into any contract or making any disposition in respect of his [APPELLANT] or any part thereof or interest therein; or (b) subject to Part 9, appointing or conferring any power on an agent or attorney in respect thereof; except to the extent that the administrator, with the consent of the Tribunal, in writing authorises him to do so. (2) Any money or property the subject of an attempted dealing by a [[NAME]] contrary to subsection (1) may be recovered by the administrator in any court of competent jurisdiction. (3) Nothing in this section affects – (a) any contract for necessaries entered into by a [[NAME]]; or (b) any contract or disposition by a [[NAME]] made for adequate consideration with, or in favour of, any other person who proves that he acted in good faith and was unaware that that person was a [[NAME]]; or (c) anything done under a power of attorney by [[NAME]] who proves that he acted in good faith and was unaware that the donor of the power was a [[NAME]]. (4) Nothing in this section affects any legal incapacity attaching to a [[NAME]] by reason of infancy. (5) For the purpose of this section the acceptance of payment of the whole or any part of a debt shall be deemed to be a disposition in respect of the [APPELLANT].'

Relevant case law 17 The respondent relies on the consideration of s 77 of the Act by the [ADDRESS] of the Supreme Court of Western Australia in Re "DDM" file number 02/0352; Ex Parte the Full Board of the [[NAME]] (2003) 27 WAR 475. [ADDRESS] there overruled an earlier decision of the [ADDRESS] of the Supreme Court of Western Australia in Johnson v Staniforth [2002] WASCA 97. The principal issue in "DDM" 27 WAR 475 was whether s 77(1)(a) of the Act had any application to a will made by a testator who was subject to an [[NAME]] order under s 64 of the Act. [ADDRESS] found that s 77(1)(a) had no application to a will made by a testator the subject of an [[NAME]] order on the basis that the making of a will did not involve any disposition in respect of the [APPELLANT] or any part thereof or interest therein (as any disposition under the terms of a will would only take place following the death of the testator and because the functions which could be conferred on an administrator under the Act did not include the power to make a will or other testamentary writing). 18 The leading judgment, with which the other members of the [ADDRESS] concurred, was that of [[NAME]]. In relation to the meaning of s 77(1)(a) of the Act [[NAME]] J stated at [43] and [44]: '43 In the present case, therefore, the duty of the court is to ascertain the meaning which Parliament intended to be given to the word "disposition" in s 77(1))(a) of the Act, rather than to import a meaning given to the word "disposition" in some different statutory context or attributed to it in some decision dealing with differing considerations. In this regard it seems essential to appreciate that the Guardianship and [[NAME]] Act is intended to provide for the guardianship of adults who need assistance in their personal affairs, for the [[NAME]] of the estates of person who need assistance in their financial affairs … and to make provision for a power of attorney to operate after the donor has ceased to have legal capacity, and for connected purposes (see the long title to the Act). From this, and an examination of the entire Act, it is obvious that the legislation is designed for the protection of [[NAME]] whose faculties may be impaired, for any reason, and who are therefore in need of protection and assistance so as to ensure that their financial affairs and other welfare is not jeopardised by improvident, or ill-considered personal decisions or action, or by unscrupulous or ill-advised influence of relatives, friends and others who may deliberately or inadvertently exploit the vulnerability of the person in need of assistance and protection.' 44 These ends can be achieved, when it comes to dealing with the property and financial affairs of the person in need of assistance, by ensuring that any financial property or commercial transactions which would, or might, jeopardise the financial security or interests of the disabled person, are only effective when performed by a properly appointed administrator and with the Board's consent. The emphasis is on conserving the property and financial resources of the disabled person to ensure that they are available for his or her own needs, welfare and enjoyment and are not dissipated. These seem to be the primary objectives of the legislation and all the provisions of the Act can be seen to have meaning and effect as leading towards the achievement of those purposes. In the main, these will be accomplished by conserving the resources and property of the person under [[NAME]] for use to his or her own advantage or, in cases where expenditure or imminent disposition of property are necessary or advantageous, by scrutinising the transaction to see that it is justifiable or provident having regard to all the circumstances, bearing always in [NAME] the continuing and future needs of the person whose [APPELLANT] is under [[NAME]].' 19 There are, however, other authorities of relevance. In [[NAME]] v [COMPANY]) [COMPANY] [2005] VSCA 233 the Court of Appeal of the Supreme Court of Victoria was called upon to consider the validity of a notice of appeal issued by an appellant who was subject to an [[NAME]] order. [ADDRESS] (Eames JA, with whom Ashley JA and Hollingworth AJA agreed) held the notice of appeal was void. The reasoning of the Court was as follows: '[15] The first question which arises is whether the notice of appeal issued in those circumstances was valid. By s 58B(1)(b) of the Act, upon appointment as administrator it is the duty of the administrator, inter alia, "to manage the affairs of the [[NAME]] and to exercise all rights statutory or otherwise which the [[NAME]] might exercise if the [[NAME]] had legal capacity". Pursuant to s 58B(2)(l) an administrator may, in the [NAME] of and on behalf of the [[NAME]], bring and defend actions and other legal proceedings in the [[NAME]]. By s 50(1) the administrator is empowered to sign and do all such things as are necessary to give effect to any power or duty vested in the administrator. [16] Section 52(1) provides that where an [[NAME]] order has been made the [[NAME]], until revocation of that order, "is to the extent that the [[NAME]]'s [APPELLANT] is under the control of the administrator, deemed incapable of dealing with, transferring, alienating or charging her or his money or property or any part thereof or becoming liable under any contract without the order of the Tribunal or the written consent of the administrator". By s 52(2) every dealing by a [[NAME]] "in respect of any part of the [APPELLANT] which is under the control of the administrator is void and of no effect and the money or property the subject of the dealing, transfer, alienation or charge by any [[NAME]] is recoverable by the administrator in any court of competent jurisdiction". [17] There is no definition of "[APPELLANT]" for the purpose of s 46(1)(a)(ii) (fn 2 The word "[APPELLANT]" is, however, defined in s 3 of the [COMPANY]) Act 1994 to mean "real and personal [APPELLANT]" and by s 35 of that Act a new Div 3A of Pt 5 was inserted into the Guardianship and [[NAME]] Act 1986, one of the new provisions being s 58B, in the terms in which it now appears.) but the lodging of a notice of appeal rendered the applicant liable to orders as to costs and in lodging his notice of appeal while the [[NAME]] order continued the applicant was dealing with that part of his [APPELLANT] which was the subject of the order, namely such rights as were concerned in legal proceedings against [[NAME]]. In my opinion, he was not empowered to take that step, nor, indeed, was he empowered to file a summons seeking an adjournment of the hearing of the s 23A application, because that step was also taken when the [[NAME]] order applied to the proceedings. That conclusion is consistent with authority. [18] The terms of s 54H and s 54I of the repealed [[NAME]] Act 1958 were in nearly identical terms to those of s 52(1) and (2) of the Guardianship and [[NAME]] Act 1986. In Re [[NAME]], A Protected Person (fn 3 [1983] 1 VR 605, at 608.) [[NAME]] J held, citing the decision of the Court of Appeal in [[NAME]] (fn 4 [1905] 1 Ch 160.), that whilst [[NAME]] was subject to a protection order the [APPELLANT] of that person could be dealt with only by the [[NAME]]. Beach J quoted with approval the words of [[NAME]] in Re [[NAME]](fn 5 [1920] 1 Ch 284 at 288–9.) who, in applying the decision of the Court of Appeal held that were the situation otherwise "this unsatisfactory result would follow, that the affairs of the [[NAME]], although put under the control of one person, the receiver, would in fact be controlled by two persons — namely, the [[NAME]] and the receiver." [19] The analysis by [[NAME]] J of the effect of the legislative provisions was accepted by all members of the [ADDRESS] of Appeal in [[NAME]] by Her Tutor The Protective Commissioner v [[NAME]] and Anor (fn 6 (1993) 30 NSWLR 417, at 432, per [[NAME]] P; at 438–9, per Sheller JA (with whom Priestley JA agreed). [20] In my opinion, therefore, the notice of appeal was void (as was the summons whereby application was made for an adjournment). That defect of the notice of appeal might, however, be capable of being overcome.' A subsequent application to the High Court for special leave to appeal was refused: [[NAME]] v [COMPANY]) [COMPANY] [2006] HCATrans 169. In dismissing the application [[NAME]] J on behalf of himself and [[NAME]] J said that there was no reason to doubt the correctness of the conclusions reached by the Court of Appeal. 20 In [[NAME]] by Her Tutor the Protective Commissioner v [[NAME]] (1993) 30 NSWLR 417 consideration was given to the effect of an order committing the management of an [APPELLANT] of a protected person to the Protective Commissions under the Protected Estates Act 1983 (NSW). Sheller JA (with whose reasons Priestley JA agreed) said at 438-439, after reference to the decision of Beach J in Re Barnes [1983] 1 VR 605: 'It is true that s 54(1) of the [[NAME]] Act 1958 provided, subject to immaterial exceptions, that every dealing transfer or alienation or charge by any protected persons should be void and of no effect. There is no equivalent provision in the Protected Estates Act 1983. But, in my opinion, such a section would do no more than confirm the effect of committing the management of [[NAME]]'s [APPELLANT] with express consequential powers, authorities and duties to the Protective Commissioner.'

Respondent's submissions 21 The respondent submits that by reason of the terms of s 77 of the Act the applicant was incapable of dealing with his [APPELLANT] in respect of the specified function which was the subject of the [[NAME]] order of 11 April 2006, that is, bringing and defending actions, suits and other legal proceedings including the power to settle such actions. 22 There is no evidence before the Court that the administrator of the applicant's [APPELLANT] as at 8 March 2007 had, with the consent of the Tribunal, authorised the applicant in writing to commence the proceeding WAD 51 of 2007. 23 Although not expressly stated in the [[NAME]] order of 11 April 2006, the respondent submits that it can be inferred from the terms of the [[NAME]] order of 11 April 2006 which continued the appointment of the limited administrator that the Tribunal remained satisfied of the matters set out in Order 2 of the [[NAME]] order of 18 November 2002. 24 The respondent further submits that consistently with the terms of ss 77 and 69(3) of the Act the making of the [[NAME]] order of 11 April 2006 has the effect that the administrator was empowered to bring and defend actions, suits and other legal proceedings in the [NAME] of the applicant and that the applicant was thereby incapable of bringing and defending actions, suits and other legal proceedings in his [NAME] whilst the [[NAME]] order remained in force. If the applicant remained capable of bringing and defending actions, suits and other legal proceedings in his own [NAME] whilst the [[NAME]] order was in force, this would render otiose the [[NAME]] order of 11 April 2006 and defeat the only purpose for which that [[NAME]] order was made. 25 The respondent submits that, consistently with the legislative intention found by the [ADDRESS] of the Supreme Court of Western Australia, the effect of s 77(1)(a) is that the particular functions in respect of the [APPELLANT] of the persons subject to the [[NAME]] order which was vested in the administrator by s 69 of the Act can only be performed by the administrator and that the person who is the subject of the [[NAME]] order is legally incapable of performing those functions whilst the [[NAME]] order is in force. 26 The respondent also submits that as the [[NAME]] order of 11 April 2006 was in force at the time the applicant purported to commence the proceedings WAD 51 of 2007 he was not legally capable of commencing those proceedings at that date and the proceedings should, accordingly, be dismissed. 27 In supplementary submissions the respondent addressed the effect of the [RESPONDENT] [2005] VSCA 233case. He argues that the decision supports the submissions of the respondent on the invalidity of the application. It is pointed out that the [[NAME]] order in [[NAME]] [2005] VSCA 233, like the order in issue here, was limited to the conduct of legal proceedings in respect of the applicant. It is contended that although the wording of the relevant section of the Guardianship and [[NAME]] Act 1986 (Vic) s 52 is in different terms to the corresponding s 77 of the Act, the reasoning of the [ADDRESS] of Appeal is equally applicable to the applicant's position. Additionally it is argued that the reference in [[NAME]] [2005] VSCA 233 to Re [[NAME]][1983] 1 VR 605and to [RESPONDENT] 30 NSWLR 417 are consistent with the respondent's earlier submission to the effect that if the applicant were to remain legally capable of bringing legal proceedings while the [[NAME]] order was in force it would defeat the only purpose for which the [[NAME]] order had been made.

Applicant's submissions 28 The applicant is a self-[[NAME]] who could not be expected to address the submissions of law raised by the respondent. The applicant's submissions are directed to two aspects of fact.

Inadvertence by respondent to administrator 29 The first issue of fact is that the applicant says the respondent was aware at all times of the appointment of his administrator but chose to exclude his administrator from the proceeding on numerous occasions. In his affidavit he states: '1. The [[NAME]] brought a bankruptcy proceeding against me in June 2006 with no involvement of my Administrator (…), which show evidence that the [[NAME]] dealt with me alone.

2. I went and saw my local Member of Parliament ([[NAME]]) and the [[NAME]] credited me with $8 367.81 (…). On the 15th August, 2006 a cheque for the amount of $8 367.81 was sent c/o [NAME] [[NAME]] [[NAME]], Administrator (…). The [[NAME]] excluded my Administrator from this matter, but released the above cheque care of my Administrator.

3. On the 8th January, 2007 a 'Notice of Decision on Objection' was sent to [NAME] [[NAME]], my Accountant. The notice was sent to [NAME] [[NAME]] P.O Box (…). I was not provided with any personal notification of this notice and neither was my Administrator. I was made aware of this 'decision' by [NAME] [[NAME]] on the 15th February, 2007, when [NAME] [[NAME]] gave me a copy of this 'notice'.

4. On the 15th January, 2007, the [[NAME]] issued a 'Notice of Income Tax Audit', which was sent to [NAME] [RESPONDENT] (…).' 30 The respondent submits that at least in the case of items 3 and 4 the [[NAME]] would not, even on the applicant's submission, have been bound to deal with the applicant's administrator because the scope of the administrator's authority would not have extended to either of those matters. That is, neither of them involved the bringing and defending of an action, suits or other legal proceedings in the [[NAME]]. 31 As to paragraph 1 of the applicant's affidavit and the institution of a bankruptcy proceeding against him in June 2006, it is relevant to turn to the affidavit of [NAME] [[NAME]]. He states that on 13 April 2006 as part of his duties he was allocated instructions to seek a sequestration order against the applicant. Prior to that involvement judgment had been handed down in the District Court on 29 November 2005 directing the applicant to pay the respondent $53 121.24 and $698.70 costs. A bankruptcy notice was issued by the [[NAME]] on 31 January 2006 for the amount of $53 819.94. At the time [NAME] [[NAME]] received these instructions he was not aware that the applicant had an administrator appointed. 32 His affidavit continues by stating that he arranged for the preparation and service of a creditor's petition in the Federal Magistrates Court and organised for the petition to be served personally on the applicant at his home address, which occurred on 11 May 2006. On 1 June 2006 the applicant filed a notice stating grounds of opposition to the petition and an affidavit in support of this together with a notice of appearance. It was not until 6 June 2006 in the Federal Magistrates Court, when the District Registrar advised the applicant that he could not represent himself as he was under an [[NAME]] order, that [NAME] [[NAME]] became aware of the appointment of an administrator. The matter was adjourned until 8 August 2006. 33 The following day [NAME] [APPELLANT] sent a letter to the applicant's administrator, [NAME] [APPELLANT], advising him of what had had happened in the proceedings and requesting him to contact [NAME] [[NAME]]. 34 On 8 August 2006 [[NAME]] again appeared on behalf of the [[NAME]] in the Federal Magistrates Court before the District Registrar. The applicant attended with his administrator. [[NAME]] advised the District Registrar that the tax had been cleared by the issuing of a credit assessment and he sought on behalf of the [[NAME]] to have the petition dismissed, with the [[NAME]]'s disbursements paid by the applicant. The applicant objected to such payment. It was later decided that the [[NAME]] would not pursue the issue of costs and a letter was written on 10 August 2006 advising the Court of this.

Accordingly, on 29 August 2006 the Federal Magistrates Court ordered that the matter be dismissed with no order as to costs. 35 It is apparent from these circumstances that as soon as [NAME] [[NAME]] became aware of the appointment of the administrator he placed him with full knowledge of what had occurred on 6 June 2006 and the administrator thereafter attended on 8 August 2006. From the evidence it cannot be inferred that the respondent was aware 'at all times' that the applicant had an administrator appointed and chose to exclude the administrator from the proceeding. The inference which the applicant seeks to draw is not open on the evidence relating to any of the four matters on which he relies.

Advice from respondent 36 The applicant also asserts in his submission that the respondent's office through [NAME] [RESPONDENT] advised him that as the notice of assessment had been issued in his [NAME] he needed to lodge any appeal with the Federal Court under his [NAME] and that there was no need for his administrator to be involved. In his affidavit the applicant states: '5. On 8th March, 2007 I spoke to Ms [[NAME]] ([[NAME]], Brisbane), and I asked her whether the application to the Federal Court in appealing the 'decision' should be made by me or my Administrator. Ms [[NAME]] stated that as the 'notice' was in my [NAME] that I needed to make the application to the Federal Court and not my Administrator. It was on this advice that I lodged my application to the Federal Court.' 37 This requires reference to the affidavit of [NAME] [[NAME]]. She states she was the officer responsible for considering and deciding the objections lodged by the applicant's tax agent, [NAME] [APPELLANT], dated 2 November 2006 against the amended assessments dated 8 April 1999 for the years ended 30 June 1993, 1994 and 1996. She states that she decided to disallow the objections and a formal notice disallowing the objections was sent to [NAME] [[NAME]] on 8 January 2007. 38 [NAME] [APPELLANT] accepts that a few weeks later the applicant telephoned her. To the best of her recollection the conversation took place in January 2007. She states that as it was just a general query, she did not make a written record of the conversation but has a good recollection of it. She states: '6. [NAME] [APPELLANT] complained about the objection decision and asked me what he could do about it. I advised him he had provided no evidence to support his claims and it was decided to disallow his objection. I told him that he had a right of appeal that was set out in the attachments to the objection decision that had been sent to him. We spoke in general terms and mainly about appealing to the Administrative Appeals Tribunal.

7. I was aware from my earlier reading of the decision in his previous appeal to the [NAME] that he had an Administrator but this had slipped my [NAME] at the time of our conversation. At no time in my telephone discussion with [NAME] [APPELLANT] did we discuss what the Administrator's role would be in an appeal. I am quite certain that [NAME] [APPELLANT] did not ask me nor did we ever discuss whether any application to the Federal Court needed to be made by the Administrator.' 39 There is a conflict in the evidence of the applicant and [APPELLANT]/s [APPELLANT]. They have different recollections of the conversation. I am inclined to find that the effect of the evidence of both witnesses is that [APPELLANT]/s [APPELLANT] advised the applicant that, as the notice was in his [NAME], he needed to make the application himself to the Federal Court. However, that was stated without any reference to the position of an administrator. 40 In any event, whatever the advice given by [[NAME]]/s [[NAME]] it cannot preclude any effect which the statute law might have in relation to the validity of his application. I therefore return to those issues.

Effect of [APPELLANT] case 41 The applicant accepts that the decision in the [APPELLANT] [2005] VSCA 233 case may support the respondent's submissions on the apparent validity of the present application. However, he contends that the validity of the application would not have been an issue had it not been for the misleading advice of the officer Ms [APPELLANT], as set out in the applicant's affidavit filed on 15 May 2007. The applicant seeks an exercise of the discretion of the Court to grant leave for the fresh application to be lodged in view of that misleading advice. Further the applicant asserts the Court should have regard to the likelihood of him succeeding before this Court. Above all, he seeks that the issues be judged on their merits.

Validity of application 42 I consider the applicant is correct in accepting that the decision of the [ADDRESS] of Appeal in [RESPONDENT] [2005] VSCA 233 may support the respondent's submissions on the validity of the application. It is clear that it and the other authorities referred to in it do provide that support. Not only should this Court follow the reasoning in [[NAME]] [2005] VSCA 233 but there is no apparent legal reason for not doing so. In particular I agree that any differences in the wording of the legislation under consideration here and that considered in [[NAME]] [2005] VSCA 233 does not provide a foundation for making the reasoning in [[NAME]] [2005] VSCA 233 inapplicable here. The consequence is that the application was invalid. 43 The plea of the applicant for his application to be considered on its merits is understandable. However, given the invalidity of the application there is no discretion which arises in the Court to grant him leave to file a fresh application. It is not open to the Court to take the steps which the supplementary submissions of the applicant seek.

EXTENSION OF TIME 44 This issue arises in relation to the second application. The objection decisions which the applicant seeks to appeal were made on 8 January 2007 and served on the applicant's tax agent by post sent on that day. Consequently, the second application filed on 5 April 2007 was lodged outside the prescribed period of 60 days. 45 Section 14ZZN of the Taxation [[NAME]] Act 1953 (Cth) (the TAA) is the substantive statutory provision which prescribes that an appeal to the Federal Court against an appealable objection decision must be lodged with the Court within 60 days after service of the notice of the decision. 46 Whether the Federal Court was empowered to extend the time limit prescribed by s 14ZZN of the TAA has been considered by the Federal Court in [[NAME]] v [[NAME]] of Taxation (1999) 100 FCR 138 and [COMPANY] v Commissioner of Taxation (1994) 28 ATR 47. 47 In both [[NAME]] 100 FCR 138 and Kimberley-Clark 28 ATR 47 the Court determined that there was no statutory provision giving it the jurisdiction to extend the time in s 14ZZN of the TAA to lodge and appeal. This was unlike the positions in s 14ZZC of the TAA which modified s 29 of the Administrative Appeals Tribunal Act 1975 (Cth) ([NAME]) in respect of making an application for review of an objection decision by the [NAME] expressly saved s 29(7) of that Act which gives the Tribunal power to extend time for the lodging of such an application. 48 No statutory provision that saves any former jurisdiction of the Court to grant an extension of time in making an application to appeal against an appealable objection decision was enacted by the TAA at the time that Pt IVC (which included s 14ZZN) was introduced to the TAA. Although the Court in [[NAME]] 100 FCR 138 and Kimberley-Clark 28 ATR 47 queried whether this was an oversight on the part of the legislature, no amendment to Pt IVC of the TAA has been made to address this issue. On the authority of [[NAME]] 100 FCR 138 and Kimberley-Clark 28 ATR 47 the second application was not lodged within the 60 day time limit prescribed by s 14ZZN of the TAA and is not, therefore, a valid application. The respondent submits that the second application should therefore be dismissed. 49 In my view these submissions on the law are correct.

conclusion 50 The effect of the above reasoning is that the applicant is not able to pursue an appeal against the objection decisions in question to the Federal Court under Pt IVC of the TAA. The applicant considers that that has the consequence that, 'contrary to justice' he is precluded from appealing his bankrupt status. 51 However, as s 29(7) of the [NAME] empowers the Tribunal to extend the time for the lodging of applications to the Tribunal for review of the objection decisions, it would appear the applicant may remain entitled to make an application to the Administrative Appeals Tribunal under s 29(7) to extend the time for the lodging of applications for review of the objection decisions in question. 52 For his own reasons, the applicant states he does not wish to make an application to the Administrative Appeals Tribunal. That must be for him to decide. The fact is that he could not properly conclude he has no remaining remedies. 53 For these reasons the first and second applications must each be dismissed. I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholson.

Associate: Dated: 5 July 2007

The Applicant [[NAME]] himself

Counsel for the Respondent: [redacted]

Solicitor for the Respondent: [redacted]

Date of Hearing: 12 June 2007

Date of Judgment: 5 July 2007