Dahler v Australian Capital Territory

The application for an extension of time 41 The next question is whether Ms Keys should now be granted an extension of time to file a notice of objection. This is the critical question because a taxing officer is entitled, if not bound, to issue a certificate of taxation unless a notice of objection has been filed and without an extension of time the notice cannot be filed. 42 Rule 1.39 gives the Court power to extend a time fixed by the Rules before or after the time expires and irrespective of whether an application for extension is made before the time expires. There is no reason to suppose that r 1.39 would not apply to an application to extend the time to file a notice of objection to an estimate of costs and I accept that it does: see Calder v Commissioner of Taxation [2006] FCA 1299. 43 While the discretion to extend time is at large, there are a number of relevant considerations which guide its exercise. They include the extent of the delay, whether the applicant has provided an acceptable explanation for the delay, whether the respondent is prejudiced by the delay, and the merits of the substantive application: see, for example, Hunter Valley Developments Pty Limited v Cohen (1984) 3 FCR 344 at 348 (Wilcox J). 44 By her own admission, apart from taking the misguided step of consulting with Mr Dahler, Ms Keys took no action with respect to the costs estimate until three weeks after she claimed to have received it, one week of which fell within the prescribed time in which the notice was to be filed. No explanation was offered for her inaction in the week after she said she received the notice. The form (form 128) required little effort to complete. It already includes a statement of objection and merely calls for the insertion of the formal parts and a signature. It is true that Ms Keys was also required to lodge security of $2,000, but she did not suggest that she had any difficulty raising the security. 45 It seems from the correspondence annexed to Ms Keys' affidavit that she first determined to seek an extension of time on or about 29 June 2015, advising the Registry (apparently copying in the ACT Government Solicitor) that she would do so on the ground that Mr Dahler, as an interested person, had not been served with the bill of costs. 46 On 20 July 2015, about a month after Ms Keys was informed by the Deputy District Registrar that she would need to file an interlocutory application, she presented an interlocutory application to the Registry in Mr Dahler's name. A week later she applied for the fee to be waived. The interlocutory application was rejected for filing on 3 September 2015 because the order was made against her, not Mr Dahler. As I indicated earlier in these reasons, however, she filed another application in Mr Dahler's name a few days later, which was accepted for filing, presumably because the requisite fee was paid. 47 Taking a benign view of the chronology, then, the first attempt to seek an extension of time in which to file a notice of objection was made on 20 July 2015 - more than three weeks after the period had expired. There is no explanation for this delay. 48 On the other hand, the delay is not inordinate and the Minister does not submit that he is prejudiced by it. But "an extension of time should not be granted if the substantive application is not reasonably arguable": Hamden v Secretary, Department of Human Services [2013] FCA 3 at [40] (Besanko J). That point is not addressed in Ms Keys' submissions. Indeed, she does not expressly address the application for extension of time at all. 49 So what is the basis for the objection to the estimate? 50 If, as it appears from the amended interlocutory application, the basis for the objection is the basis Ms Keys identified in the correspondence annexed to her affidavit - that Mr Dahler should have been served with the estimate because he is a "person interested in the bill" - then the objection is hopeless. Since Mr Dahler was not ordered to pay any costs, he has no relevant interest in the bill. As I noted above, a "person interested in the bill" means "a party or a person in whose favour or against whom an order for costs has been made". No costs order was made for or against Mr Dahler. 51 No other basis for challenging the estimate is disclosed in the evidence. Nowhere in Ms Keys' affidavit is there any suggestion that the estimate was not reasonable. The itemised bill of costs prepared by the ACT Government Solicitor, annexed to Ms Keys affidavit, totals $24,267.97, roughly half of which were costs and half disbursements. At $18,881.83 the estimate is not manifestly excessive. Save for a misguided legal argument mounted in support of her stay application that the ACT Government Solicitor is not entitled to recover costs (to which I will come shortly), Ms Keys does not suggest that the costs were not properly incurred. 52 Taking into account all the relevant considerations - the want of prejudice to the respondent, the length of the delay, the deficiencies in the explanation for it, and the failure to advance any reasonably arguable basis for challenging the estimate - I am not persuaded that it would be fair and equitable to extend the time to file a notice of objection. 53 It follows that, subject to the resolution of the stay application, the certificate of taxation should not be set aside.