FEDERAL COURT OF AUSTRALIA

Atkinson v Commissioner of Taxation [2000] FCA 1621

GEORGE ATKINSON v

COMMISSIONER OF TAXATION

N 889 of 2000

HILL, DOWSETT AND HELY JJ

9 NOVEMBER 2000

SYDNEY

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

2.         The appellant pay the respondent’s costs of the appeal.

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

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

EX TEMPORE REASONS FOR JUDGMENT

HILL J:

1                     Before the Court is an application by Mr George Atkinson (“the appellant”) seeking to appeal against the judgment of Sackville J refusing to extend the time to file and serve a notice of appeal. 

2                     It appears that Mr Atkinson was assessed by the Commissioner of Taxation (“the Commissioner”) to income tax for the years of income ended 30 June 1993 to 1997 inclusive.  He objected against these assessments and when the objection was disallowed, appealed to this Court in its original jurisdiction against the Commissioner’s objection decision.  That appeal was brought under Part IVC of the Taxation Administration Act 1953 (Cth) (“the Act”). 

3                     In due course the appeal came before Lindgren J who dismissed it.  His Honour did so on the basis that he was not satisfied that Mr Atkinson had satisfied the onus of showing that the assessments were excessive and the extent to which they were.  His Honour reached this conclusion because there was an affidavit prepared for proceedings in the Family Court, sworn by Mr Atkinson which was quite inconsistent with the oral and affidavit evidence Mr Atkinson gave before Lindgren J that in the relevant period he had lived substantially on capital and had no income.

4                     Lindgren J dismissed the appeal to the Court on 1 May 2000.  He reserved, however, for the making of further submissions two additional orders which he made on 1 May 2000.  These orders concerned the question whether the Reasons for Judgment would be not communicated to any person other than the parties, their staff and legal advisers without the leave of the Court and whether a copy of the reasons for judgment should be forwarded to the Commonwealth Attorney-General.

5                     Argument was heard on these last two matters on 10 May 2000 and his Honour then, in effect, confirmed the operation of the two orders which he had reserved for further argument. 

6                     Mr Atkinson sought, apparently, on 31 May 2000 to lodge with the Court an appeal against Lindgren J's decision.  His notice of appeal was not accepted by the registry because it was out of time.  Mr Atkinson was apparently informed that he should make an application for leave to appeal out of time.  He lodged such an application on 5 June 2000.

7                     In due course the application for leave to appeal out of time came before Sackville J.  Before his Honour, Mr Atkinson sought to raise a number of matters justifying his application, that he should be permitted to appeal out of time.  These matters concerned, inter alia, a complaint by Mr Atkinson that he had been refused permission to argue various  matters such as that in fact the Australian Taxation Office did not exist and some constitutional arguments on the ground that these matters had not been foreshadowed or, for that matter, notifications given as required by the Judiciary Act 1903 (Cth) to the Attorney-General prior to the date of hearing.  He complained also of his being unable to argue other matters such as the validity of a notice which had apparently been served by the Commissioner of Taxation upon Mr Atkinson under s 218 of the Income Tax Assessment Act 1936 (Cth), in effect, garnisheeing monies which Mr Atkinson at that time held in a bank account. 

8                     Sackville J refused to grant Mr Atkinson leave and accordingly dismissed his application for that leave with costs.  Mr Atkinson seeks to appeal from Sackville J's orders and judgment. 

9                     The Commissioner of Taxation then filed a motion that Mr Atkinson’s purported appeal to this Court was incompetent.  It is this motion which is presently the subject of these reasons.  The Commissioner of Taxation relies upon two decisions of full Courts of this Court, being respectively Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543 at 548 and Hall v Anderson (unreported, Federal Court, full Court, 18 July 1997).

10                  These decisions are authority for the proposition that a single judge hearing an application to extend time to appeal against a decision of a single judge of this Court exercises the appellate jurisdiction of this Court.  They are also authority for the proposition that the alternatives set out in s 25(2) of the Federal Court of Australia Act 1976 (Cth), namely that applications of various kinds including an application to extend the time within which to institute an appeal may be heard either by a single judge or by a full Court, are true alternatives.

11                  The cases require the conclusion that if a single judge exercises the appellate power of the Court under s 25(2)(b) of the Federal Court of Australia Act no further appeal from that decision is competent.  The Act does not contemplate that such an application may be heard by a single judge and that that judge’s opinion may be then appealed to a full Court.  In Wati, the full Court left open the possibility that in a case such as the present the full Court might, in exercise of what may be referred to as inherent or perhaps implied jurisdiction, be able to reopen the application originally made.  However, if such a jurisdiction does exist it is clear that it could arise only in circumstances which were, as their Honours said, “truly exceptional”.  Such a course might, as their Honours observed, be available in circumstances where before the single judge, for some reason, there was a failure on the part of that judge to afford an applicant the right to be heard or perhaps where the application was conducted otherwise in a way which was not fair.

12                  The present is not a case that can be said to be truly exceptional.  The circumstances are indeed not unusual.  All that has happened is that Mr Atkinson has appealed out of time and has had his application to extend time rejected largely on the basis that he had not shown that he had any prospect of succeeding on the foreshadowed appeal that he sought to bring.  It is clear enough that the proceedings before Sackville J were conducted fairly and that Mr Atkinson was given a full opportunity to be heard.  Indeed, he has not suggested otherwise.

13                  In these circumstances I am of the view that the appeal to this Court is incompetent and should accordingly be dismissed.  I would hear further argument on the question of costs.

DOWSETT J:

14                  I agree with the proposed order and with the reasons given by the presiding Judge.  I would only add that apart from the procedural difficulties which the appellant faces, there seems to be no reason to doubt that the learned Judge at first instance was correct.

HELY J:

15                  I agree.

THE COURT

16                  The Court is of the view that the appellant should pay the costs of the appeal before this Court.  The orders of the Court will then be that the appeal against the decision of Sackville J be dismissed and that the appellant pay the respondents costs of it.

Associate:

Dated:              9 November 2000