Shears v Deputy Commissioner of Taxation

Introduction 1 This is an application filed 1 September 2014 for an extension of time to seek leave to appeal from the judgment of a judge of this Court given on 30 July 2014. 2 By his application, the applicant agrees to have the application heard without oral argument. 3 The applicant's position as put in his application and in his written submissions received 10 October 2014 ("AWS") is that leave to appeal is not required because the judgment sought to be appealed from is final and not interlocutory. I do not agree for the reasons which follow. 4 The substantive order made by the primary judge from which an appeal is sought to be brought provides: The applicant's Application for an Extension of the Time within which he might file an Originating Application for Judicial Review in accordance with the draft Originating Application lodged with the Court on 7 May 2014 is dismissed. 5 At [54] of his reasons for judgment ("R"), the primary judge concluded: For all of the above reasons, the so-called decisions made by the Commissioner and conduct of the Commissioner sought to be reviewed by the applicant under the ADJR Act are not capable of review under that Act. It follows that the applicant's Extension of Time Application must be refused with costs. There will be orders accordingly. 6 Contrary to the AWS at para 23 and following, the primary judge did not, objectively or otherwise, uphold a notice of objection to competency of the applicant's application for judicial review because, in the absence of an extension of time to file such an application, there was none; only a draft filed with the applicant's extension of time application. The primary judge only considered the merit of a draft notice of objection to competency in the context of deciding whether or not to grant the applicant's application for an extension of time. 7 It is well established that an order rejecting an extension of time to commence proceedings under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("ADJR Act") is an interlocutory order: see Barrett v Minister of Immigration Local Government and Ethnic Affairs (1989) 18 ALD 129 at [1]-[2]; Grant v Commissioner Australian Federal Police (No 2) [2006] FCA 1494 at [3]; Mulholland v Australian Electoral Commission [2014] FCA 916 at [41], [45]. Further, in this case, the decision not to grant an extension of time did not finally determine the applicant's rights in relation to the tax liabilities that were the subject of the application. It was open to the applicant to seek determination of his substantive rights (that is, his liability to tax) under Pt IVC of the Taxation Administration Act 1953 (Cth) ("TAA"), if not before this Court due to effluxion of time (s 14ZZN of the TAA) and this Court's inability to grant an extension of time, then before the Administrative Appeals Tribunal which does have power to extend time for the filing of applications to it for review of a decision: s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) ("AAT Act"). 8 Accordingly, the applicant requires leave to file an appeal and this application is to be treated as an application for relief under Rule 35.14 of the Federal Court Rules 2011 ("FCR").