Tax Agents' Board of New South Wales v Colin Martin [1997] FCA 249 (17 April 1997)

CATCHWORDS

PRACTICE AND PROCEDURE - application for extension of time for lodgment of notice of appeal - whether any ground to justify an extension - importance of bringing litigation to a conclusion.

Federal Court Rules, O 52 r 15(1)(b)

Jess v Scott (1986) 12 FCR 187, cited

TAX AGENTS' BOARD OF NEW SOUTH WALES - v -

COLIN MARTIN

No NG 460 of 1996

Tamberlin J

Sydney

17 April 1997

IN THE FEDERAL COURT OF AUSTRALIA )

NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 460 of 1996

GENERAL DIVISION )

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

CONSTITUTED BY MR M ALLEN, SENIOR MEMBER

BETWEEN: TAX AGENTS' BOARD OF

NEW SOUTH WALES

Appellant

AND COLIN MARTIN

Respondent

CORAM: TAMBERLIN J

PLACE: SYDNEY

DATED: 17 APRIL 1997

MINUTE OF ORDERS

THE COURT ORDERS THAT:

1. The application for extension of time be dismissed with costs.

NOTE: Settlement and entry of orders is dealt with in accordance with Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )

NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 460 of 1996 GENERAL DIVISION )

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

CONSTITUTED BY MR M ALLEN, SENIOR MEMBER

BETWEEN: TAX AGENTS' BOARD OF

NEW SOUTH WALES

Appellant

AND COLIN MARTIN

Respondent

CORAM: TAMBERLIN J

PLACE: SYDNEY

DATED: 17 APRIL 1997

REASONS FOR JUDGMENT

TAMBERLIN J:

The Tax Agents' Board of New South Wales ("the Board") seeks an extension of time in which to lodge a notice of appeal against a judgment delivered by me, on 26 February 1997, dismissing an appeal from the Administrative Appeals Tribunal ("the AAT"). The AAT decision was that Mr Martin was a "fit and proper person to prepare income tax returns and transact business on behalf of taxpayers in income tax matters."

This application for extension is made under O 52 r 15(1)(b) which reads as follows:

"15(1) The notice of appeal shall be filed and served -

(a) within twenty-one days after -

(i) the date when the judgment appealed from was pronounced; or

....

(iii) any later date fixed for that

purpose by the court appealed from; or

(b) within such further time as is allowed by the Court or a Judge upon application made by motion upon notice filed within the period of twenty-one days referred to in the last preceding paragraph.

(2) Notwithstanding anything in the preceding sub-rule, the Court or a Judge for special reasons may at any time give leave to file and serve a notice of appeal."

In Jess v Scott (1986) 12 FCR 187 at 195 the Full Court considered the meaning of "special reasons" in r 15(2). The Court indicated that the expression referred to grounds which justify departure from the general rule that a successful party should be entitled to the fruits of the litigation. In that case an extension of time was granted where, because of the misunderstanding on the part of the solicitor as to the date of the judgment, the notice of appeal was served one day late.

Although "special reasons" are not required in r 15(1)(b), there must be some reasonable ground to justify an extension of time.

In the present case the evidence comprises two affidavits by a solicitor in the employ of the Australian Government Solicitor. The first affidavit of 19 March 1997, deposes that the solicitor was aware that the relevant period was twenty-one days for appeal and that 19 March 1997 was the final date unless an extension was given. The deponent states that she had received instructions from the Board that the last meeting of the Board had been convened on 4 February 1997, being twenty-two days before the reasons for judgment were handed down. She was also aware that the next meeting of the Board would be convened on 8 April 1997 and that this would be the first occasion, since judgment was handed down, that the Board would have an opportunity to consider whether or not to appeal.

In her later affidavit of 4 April 1997 the solicitor says that the judgment was sent to Counsel on 17 March 1997 (two days before expiry of the period) and that a conference was held between Counsel, the Secretary of the Board and the solicitor on 19 March 1997. The Secretary of the Board on that occasion stated that a decision could not be made about an appeal and that the Board was not going to meet until 8 April. Instructions were subsequently received to file a notice of motion seeking an extension of time until 9 April 1997. The present notice of motion was then served on 24 March 1997 on the legal representative of Mr Martin, together with an affidavit in support. Arrangements were made to have it served personally on Mr Martin on that date.

On 3 April 1997, the solicitor was informed by the Acting Secretary of the Board that two of the three members of the Board had been contacted and that the two members, having formed a quorum in accordance with s 251E of the Income Tax Assessment Act 1936 on 3 April 1997, had approved the filing of an appeal to the Full Federal Court.

In my view, the evidence adduced does not disclose any "reason" to justify any extensions. There has been no reasonable explanation as to why the appeal was not pursued prior to mid-March 1997, nor why a quorum could not have been constituted prior to 3 April 1997. There was no justification for not filing a notice of appeal or getting instructions on the ground that there was no scheduled meeting of the Board prior to the expiry of the appeal period. Due administration of the court processes cannot be governed by the administrative convenience of litigants.

This is a matter in which there has been no allegation of incompetence or lack of qualifications and experience against Mr Martin.

In a report of 31 May 1995, Mr Brett Kunkel, the Account Manager for the Board, expressed concern about the failure of the Board to afford due process to Mr Martin. In the penultimate paragraph of his report he states:

"This does not relieve the Board of its legal vulnerability to Martin, however, I am confident that Martin's primary concern is with the service of his clients and I believe that the matter could end there if it is actioned in a timely and reasonable fashion."

On 10 May 1996, after a two day hearing, the AAT set aside the decision of the Board and remitted the matter to it with the direction that the applicant was a "fit and proper person" to prepare income tax returns and transact business on behalf of taxpayers in income tax matters.

On 7 June 1996, the last day for filing a notice of appeal, the Board instituted an appeal against the decision of the AAT. The matter was heard by me on 17 December 1996.

It is important to bear in mind that these proceedings relate to the exercise by Mr Martin of his profession. The proceedings bear on his livelihood and professional reputation. These are matters of great importance. No doubt they have caused considerable concern and anxiety on the part of Mr Martin and his family.

After detailed examination of testimony and documents and with the benefit of submissions from both sides, the AAT has concluded that he is a "fit and proper person" to exercise the functions of a registered tax agent. This Court has found no error of law in that determination. There must be an end to litigation. This matter has been fairly ventilated in exhaustive detail over a period of several years.

The foregoing considerations are in addition to the Board's failure to present any justification for the delay in filing the notice of appeal in this matter.

Having regard to the above considerations, I refuse to extend time to enable the Board to file a notice of appeal and I order the Board to pay the costs of Mr Martin in relation to this application.

I certify that this and

the preceding five (5)

pages are a true copy of the

Reasons for Judgment herein of

his Honour Justice Tamberlin.

Associate:

Date: 17 April 1997

Counsel for Applicant: Mr D M Godwin

Solicitor for Applicant: Australian Government Solicitor

Counsel for Respondent: Mr R M Gordon

Date of Hearing: 4 April 1997

Date Judgment Delivered: 17 April 1997