Vranic v Commissioner of Taxation

REASONS FOR JUDGMENT THE COURT: 1 The appellant, Ljubica Vranic, appeals against an order of Drummond J refusing an application for an extension of time in which to appeal to the Federal Court from a decision of the Administrative Appeals Tribunal of 30 March 2001 that dismissed her application for review to it (see s 42B(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth)) on the ground that it was frivolous or vexatious. The application for extension of time to appeal to the Federal Court was filed by Ms Vranic on 19 July 2001. Ms Vranic was not legally represented before Drummond J and is not represented in this appeal. 2 Before considering Drummond J's decision and the objections taken to it by Ms Vranic, one preliminary matter should be noted. An appeal against a decision either granting or refusing an extension of time in which to appeal under s 44 of the Administrative Appeals Tribunal Act is of its nature interlocutory in character such that leave to appeal to this court is required under s 24(1A) of the Federal Court of Australia Act 1976 (Cth): Deighton v Telstra Corporation Ltd, unreported, Full court of the Federal Court, 17 October 1997; cf Barrett v Minister for Immigration, Local Government and Ethnic Affairs (1989) 18 ALD 129 at 130. 3 The considerations ordinarily applied in determining whether or not to grant leave are well accepted. They are (i) whether in all the circumstances the decision in question is attended by sufficient doubt as to warrant its being reconsidered by the Full Court: and (ii) whether substantial injustice would result if leave were refused supposing the decision to be wrong: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. Rather than simply dismiss the present appeal as incompetent - no application for leave had been made - we have proceeded as if leave had been sought. 4 The circumstances giving rise to Ms Vranic's original application to the Administrative Appeals Tribunal can be stated shortly. On 27 October 2000 by letter headed "Objection" she wrote to the Deputy Commissioner of Taxation seeking what his Honour described as information about certain of her income tax assessments. It is not altogether easy to determine precisely what Ms Vranic was seeking in this communication. Apart from reference to assessments and to provisions of miscellaneous statutes including the Income Tax Assessment Act 1936, it referred for example to an application for leave under "both the ADJR Act and 39B of the Judiciary Act"and to an explanation being given through "the Open Government Act 2000". The Australian Taxation Office replied on 14 December 2000 to what it apparently discerned to be the concerns of the letter. To the extent that the letter referred to assessments lodged by Ms Vranic the reply indicated that the details shown on them were found to be correct. The reply went on to outline the objection procedure laid down in Part 4C of the Taxation Administration Act 1953 if a taxpayer, being dissatisfied with an assessment, wished to make a taxation objection. Having received this letter Ms Vranic filed an application for review of the decision said to be contained in the letter from the Australian Taxation Office. On 8 January 2001 the Australian Tax Office wrote to the Deputy Registrar Taxation Division of the Administrative Appeals Tribunal indicating that it considered the Tribunal did not have jurisdiction to deal with the matter. That letter drew attention to the fact that no objection had been lodged in accordance with s 14ZU of the Taxation Administration Act and that the Commissioner had not in consequence made an objection decision from which an appeal to the Tribunal lay under s 14ZZ. The burden of the letter was to have the Commissioner excused from lodging the s 37 documents. When the matter came on for directions before the Tribunal, the Tribunal dismissed her application on the ground that it was frivolous or vexatious. It did not give reasons for that decision. 5 On the application for extension of time to appeal to the Federal Court, Drummond J indicated that on the material before him there could be no doubt whatsoever that the Tribunal's decision was correct. That conclusion is one with which we must agree. The Tribunal's jurisdiction to entertain Ms Vranic's application was dependent upon there being an objection decision and no such decision had ever been made by the Commissioner. His Honour in consequence took the view that the absence of any real prospect of overturning the Tribunal's decision would be fatal to the application for an extension of time. His Honour indicated, additionally, that there was a significant delay in making the application to the Court and that no material had been put before the Court explaining the delay. His Honour considered that in those circumstances there was no evidentiary basis upon which he could properly act to extend time. Finally his Honour noted that in the material before him (including the notice of appeal) there was nothing that came near to identifying a possible error of law on the Tribunal's part. 6 Ms Vranic's notice of appeal to this Court does not identify any ground which could justify interference with the decision of his Honour. Ms Vranic also filed a hand written document which purported to outline questions of law and errors of law. It contains a number of factual statements and assertions none of which disclose even an arguable basis for interference with his Honour's decision. Unfortunately Ms Vranic has misconceived what his Honour's role was in an application under s 44 of the Administrative Appeals Tribunal Act. Thus for example she asserts that his Honour committed an error by refusing "to investigate the agency which is in breach of the act (sic)". A related document entitled "Leave to Granting to Appeal" does not advance the matter any further. That document demonstrates that the matters Ms Vranic wishes to have considered are of no little importance to her. It is the case, though, that they do not raise any arguable ground for interfering with his Honour's decision. In our view an appeal against his Honour's decision is doomed to failure. The Tribunal did not have jurisdiction in respect of the alleged decision which Ms Vranic wished to have reviewed by it. The application for extension of time to the Federal Court was out of time and had no prospects of success. His Honour took the only course properly open to him in refusing the application. That decision is not attended by doubt sufficient to warrant its reconsideration and no substantial injustice would result from leave not being granted. 7 Accordingly we would refuse the application for leave to appeal. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Beaumont, Finn & Sundberg JJ.