Rawson Finances Pty Limited v Deputy Commissioner of Taxation

REASONS FOR JUDGMENT (Revised from transcript) 1 On 31 May 2010 I made a number of orders, including an order striking out the applicant's application for an order of review filed on 30 November 2009 and an order granting leave to the applicant to file in this proceeding an amended application seeking relief based on the jurisdiction conferred by s 39B of the Judiciary Act 1903 (Cth). The applicant did not avail itself of the leave that had been granted within the time prescribed by O 13 r 6 with the consequence that, subject to extension of time under O 3 r 3, the order granting leave has ceased to have effect. By notice of motion filed on 1 July 2010 the applicant moves, pursuant to O 3 r 3, to extend the period of leave originally granted to 4.00 pm on the day following the determination of its motion. 2 The respondent opposes that extension for the following reasons. First, no proper explanation has been given in respect of the applicant's failure to exercise the leave originally granted. Secondly, the filing of an amended application, for which leave was originally granted, would be an exercise in futility, because the relevant decision in respect of which relief would be sought was referable to a request made by letter dated 7 October 2009 from the applicant's solicitors to the respondent. That request was specific in its terms, particularly in relation to a particular time period. The decision made in response to that request has now been overtaken by a further decision of 22 June 2010 in respect of a later request by the applicant. The later decision is the subject of an application under s 39B of the Judiciary Act in proceeding NSD 698 of 2010. That proceeding is in Foster J's docket, along with other proceedings between the applicant and the respondent. 3 Thirdly, the respondent raises matters going to the merits of the grounds in the proposed amended application. 4 On 9 June 2010 the applicant, by motion, sought leave to appeal from the order striking out the application for an order of review. On 24 June 2010 Buchanan J ordered that the notice of motion be referred for hearing by a Full Court. In an affidavit made on 30 June 2010, Kym Andrew Beilby, a solicitor employed by the applicant's solicitors deposed as follows: We have been obtaining instructions from our client in relation to the filing of the application to which [sic] this Affidavit supports ("Amended Application"). In light of the other orders made by his Honour Justice Buchanan on 25 June 2010, including that the decision of his Honour Justice Yates be referred to the Full Federal Court for hearing, a decision was taken to seek leave to file the Amended Application out of time. 5 It is not self-evident why any decision to seek to file an amended application was dependent on the order that the application for leave to appeal be referred to a Full Court or on any other order. 6 In submissions today, counsel for the applicant has submitted that the reason for not filing the proposed amended application within time concerned doubts about the utility of filing an amended application. Those doubts have now, but only recently, been resolved in the applicant's mind. The applicant submits that the recovery decision is still on foot although the deferral decision has been overtaken by events. 7 In my view, the fact that the applicant was in a state of uncertainty as to whether it should file an amended application is not a sufficient reason for extending time to file the proposed amended application. If that uncertainty existed, then it was open to the applicant to approach the Court, prior to the period for leave expiring, to extend time. It did not do so. 8 It is of course open to the applicant to commence new proceedings if it considers that there is utility in doing so. I would add, however, that there is considerable substance, in my view, in the respondent's second submission concerning futility. Even if I were to extend time, there is a real question whether the amended application could lead to the grant of discretionary relief in favour of the applicant in light of the events that have happened. I need say no more about that matter than to note that the prospect of relief being granted is sufficiently doubtful in my mind that that would be reason itself to refuse to extend time. I should add that if the applicant does seek to commence fresh proceedings, then those proceedings should be placed in Foster J's docket. 9 I will dismiss the applicant's motion. The applicant is to pay the respondent's costs. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Yates.