FEDERAL COURT OF AUSTRALIA

Nicholls v Deputy Commissioner of Taxation [2009] FCA 1003

PRACTICE AND PROCEDURE – application for extension of time to file notice of appeal – Federal Court Rules O 52 r 15(2) – extension may be granted “for special reasons” – depends on the merits of the substantial application

Held: extension of time to file notice of appeal not granted

Federal Court Rules O 52 r 15(1), O 52 r 15(2)

Jess v Scott & Ors (1986) 12 FCR 187 referred to

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 applied

Deputy Commissioner of Taxation v Nicholls (No 3) [2009] FCA 785 referred to

ARTHUR CHRISTOPHER NICHOLLS v DEPUTY COMMISSIONER OF TAXATION

SAD 125 of 2009

LANDER J

25 AUGUST 2009

ADELAIDE

THE COURT ORDERS THAT:

1.                  The application to stay the orders of Mansfield J made on 15 January 2009 be dismissed.

2.                  The applicant pays the respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                     This is an application for an extension of time to file a notice of appeal.  On 10 July 2008, the Deputy Commissioner of Taxation issued an application in the Federal Magistrates Court for a declaration that none of the documents and other materials seized at the premises of Arthur Christopher Nicholls, at 18 Silvermere Avenue, Paradise, South Australia 5075, by officers of the Australian Federal Police and officers of the Australian Taxation Office, pursuant to the search warrant executed on 6 May 2008, are covered by legal professional privilege.  The application was confined in its terms to the documents identified in the application, being those seized on that date, pursuant to that search warrant.  This proceeding therefore, concerns the same documents which were obtained upon the execution of the search warrant issued by a Magistrate in this State on 5 May 2008, and which is the subject matter of the proceeding in SAD 138 of 2008. 

2                     On 9 September 2008, the proceeding was transferred from the Federal Magistrates Court to this Court.  It is unnecessary, at this stage, to recite the procedural history, both in the Federal Magistrates Court and in this Court, up until the time of the orders made by Mansfield J on 23 July 2009.  I will refer to some of his Honour’s remarks in relation to that issue in due course.  On 23 July 2009, Mansfield J ordered that all material seized by the Australian Federal Police and the Australian Tax Office, pursuant to the search warrant executed on 6 May 2008, other than specified documents, which are irrelevant for the purpose of this application, being the documents over which privilege was claimed by Mr Nicholls, be released to the Deputy Commissioner of Taxation for inspection. 

3                     His Honour also made an order staying paragraph one of his orders, until an appeal which had been lodged by Mr Nicholls in relation to a previous decision of his Honour on 15 January 2009 was determined by the Full Court of this Court.  I should mention that that appeal was determined and dismissed on 11 August 2009.  Mr Nicholls did not appeal from the orders made by Mansfield J on 23 July 2009 within the twenty-one (21) days being the time prescribed for the filing of a notice of appeal by O 52 r 15(1) of the Federal Court Rules.  On 21 August 2009, Mr Nicholls made this application for an extension of time relying upon O 52 r 15(2) which provides:

Notwithstanding anything in the preceding subrule, the Court or a Judge for special reasons may at any time give leave to file and serve a notice of appeal.

4                     The subrule is therefore engaged if the party who wishes to appeal has not complied with O 52 r 15(1) and applies for leave to file and serve a notice of appeal.  The party must establish special reasons and persuade the court that it ought to exercise its discretion to allow the filing and serving of the notice of appeal. 

5                     The applicant’s application states that the grounds for the application appear in an attached affidavit.  On the same day as the application was filed, the applicant filed an affidavit in which he deposed that he was presently unrepresented and indigent, and had to prepare the appeal documents and information necessary for the appeal himself. He claims that during the period between the delivery of Justice Mansfield’s reasons on 23 July 2009 and 13 August 2009, which would have been the last day for the filing of a notice of appeal in compliance with O 52 r 15(1), he had to spend all of his time in preparation for an appeal to the Full Court.  As a result, he said, he was unable to complete the necessary lodgement of the notice of appeal in this proceeding.  The reference in the applicant’s affidavit to the appeal is the appeal from the orders made by Mansfield J on 15 January 2009 which was heard and determined by the Full Court of this Court on 11 August 2009. 

6                     In Jess v Scott & Ors (1986) 12 FCR 187 at page 195, the Full Court said:

What is needed to justify an extension of time is indicated in r 15(2) by the words “for special reasons”.  It is that there be shown a special reason why the appeal should be permitted to proceed, though failed after the expiry of twenty-one days.  In that context, the expression “special reasons” is intended to distinguish the case from the usual course according to which the time is twenty-one days. But it may be so distinguished (not necessarily will, for the rule gives discretion) wherever the Court sees a ground which does justify departure from the general rule in the particular case.

7                     Mr Nicholls’ only reason why he did not file the notice of appeal within the time prescribed by O 52 r 15(1), is that he was preoccupied with an appeal which he was then conducting in the Court.  He does not suggest in his affidavit that he did not know that he had to file the notice of appeal within the time prescribed by O 52 r 15(1).  He chose not to file it because he chose, as he was entitled, to use that time in preparation for his appeal.  He says he was occupied on that appeal to 13 August 2009, but that cannot be right because as I pointed out to him during his argument, the appeal to which he refers was in fact dismissed on 11 August 2009. 

8                     The first question to be determined is whether the reason Mr Nicholls has given is a special reason to take the matter out of the ordinary. For the reasons which follow, I do not think, in the context of this proceeding and having regard to the history of this proceeding, it is a special reason.  In Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 and 348 to 349, the Court identified the principles for consideration of an application of this kind:

(a)        Applications for an extension of time are not to be granted unless it is proper to do so.  Prescribed legislative entitlements are not to be ignored.

(b)        There must be some acceptable explanation for the delay.

(c)        Any prejudice to the respondent in defending the proceedings caused by the delay is a material factor militating against the grant of extension.

(d)        The mere absence of prejudice to the respondent is not enough to justify the grant for an extension.

(e)        The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted.

9                     The explanation for the delay is hardly satisfactory.  Mr Nicholls was aware that the notice of appeal needed to be lodged by 13 August 2009.  Although he may have had obligations in respect to the appeal pending before the Full Court, that did not relieve him of his obligation to comply with the rules. 

10                  The Deputy Commissioner of Taxation has not contended, in relation to the application for an extension of time, that the Deputy Commissioner would be prejudiced by the granting of an extension of time, which was sought some eight days after the time for filing the notice of appeal had passed.  Howeverthe absence of prejudice is not a ground for granting an indulgence to the party seeking the indulgence; it merely means that it is not a reason not to grant the indulgence: Hunter Valley Developments v Cohen.

11                  It is clear on the authorities, the merits of the appeal must be addressed.  The draft notice of appeal identifies 76 grounds of appeal, but when the draft notice of appeal is understood, it could be seen that most of those grounds are no more than what might amount to Mr Nicholls’ argument on appeal.  The draft notice fails to identify with any particularity the true grounds of the appeal from his Honour’s orders.  The notice of appeal seems to address three matters of general complaint. 

12                  The first is in relation to the non-provision by the Deputy Commissioner of an email server to Mr Nicholls during the trial.  I am not satisfied that that was ever an issue at the trial or that the non-provision of that email server could have been relevant to the matter with which his Honour was concerned. 

13                  The second complaint is the failure by the primary judge to grant Mr Nicholls an adjournment.  The primary judge dealt with the question of an adjournment at some length in his reasons.  There is nothing in the draft notice of appeal which would suggest that his Honour in any way erred in the exercise of his discretion in relation to his refusal to grant Mr Nicholls an adjournment.  I shall refer to some of the reasons a little later. 

14                  The third complaint relates apparently to the cross-examination of Mr Nicholls during the application for the adjournment.  There can be no suggestion, in my opinion, that his Honour was wrong to allow the Deputy Commissioner’s counsel to cross-examine Mr Nicholls in relation to matters which Mr Nicholls said were relevant to the application for adjournment.  Indeed, in my respectful opinion, his Honour would have been wrong to refuse to allow cross-examination on that issue.

15                  They appear to be the three main issues which arise out of the notice of appeal.  The notice of appeal, however, makes a number of complaints in relation to specific aspects of his Honour’s reasons.  The form adopted in the notice of appeal is to outline the reasons and then to follow in the next paragraph with the complaint.  Regrettably, the complaints do not usually bear upon the findings of which the complaint is made.  During this application I pointed out to Mr Nicholls on a number of occasions (by way of example) that the draft notice of appeal identified a particular statement made by his Honour in his reasons and then went on to, apparently, complain about that finding or that statement.  However, invariably within the notice of appeal, the complaint which follows the reference to his Honour’s reasons does not bear out any error in the reasons themselves.  After I had pointed that out to Mr Nicholls during the hearing of this application and, after addressing a number of those issues, Mr Nicholls sought an adjournment of this application in order for him to obtain legal advice so that a more appropriate document could be proffered.  The application was opposed by Ms Chapman, counsel for the Deputy Commissioner of Taxation.

16                   Mr Nicholls made a number of statements from the bar table in relation to solicitors’ involvement in the matter, and the documents that the solicitors had and when he would be able to proffer a further document.  Accepting those statements for the purpose of the argument, his ground for the adjournment was that he had provided the reasons for judgment to solicitors who had considered the reasons.  He had not provided them with the evidence which was adduced at trial. He would, he thought, be able to provide a notice of appeal which particularised the grounds within a week. 

17                  Ms Chapman opposed the application on the ground that this was a further instance of delay by Mr Nicholls in this proceeding and other proceedings in this Court, in relation to the issue of the search warrant of 5 May 2008 and the execution of that warrant on 6 May 2008.  I refused the application for the adjournment because I was satisfied, on the history given by his Honour in the reasons which are impugned by Mr Nicholls, that Mr Nicholls has failed on a number of occasions to prosecute or defend proceedings in this Court in a timely fashion. I will refer to some of his Honour’s comments in relation to that in these reasons. 

18                  The issue which was before the primary judge arose out of Mr Nicholls making a blanket claim for legal professional privilege on 8 May 2008, over the whole of the material which had been seized during the execution of the search warrant on 6 May 2008.  His Honour’s reasons demonstrate that the Court has had considerable difficulty in having Mr Nicholls identify the documents over which, in fact, he claimed privilege.  The learned judge refers in his reasons to processes which were put in place by the Court, which he said were prolonged and not even completed at the time of hearing.  His Honour noted that, during the continuation of this proceeding, the Deputy Commissioner of Taxation had lost patience and had brought this application seeking an order that he be entitled to inspect the seized material. 

19                  In his reasons, the learned judge has described in detail the attempts which had been made by both the Deputy Commissioner of Taxation and by the Court, to have Mr Nicholls identify precisely the documents over which Mr Nicholls claims legal professional privilege.  It would appear, from his Honour’s reasons, that Mr Nicholls has not cooperated in any way in attempting to identify those documents.  Indeed, as I have already noted, at trial Mr Nicholls sought an adjournment of the application, which it may be inferred his Honour thought was a further delay on Mr Nicholls’ part.  His Honour’s reasons disclose a history of non-cooperation and delay by Mr Nicholls in the process, which the Deputy Commissioner of Taxation and the Court instigated in an attempt to identify precisely the documents over which the claim for legal professional privilege was made.

20                  In the end result at trial, Mr Nicholls continued to claim privilege over every document which had been the subject of seizure under the search warrant.  His Honour said, in paragraph 115 of his reasons:

I find that at all times from about 7 November 2008, other than for a short time prior to 9 February 2004 [sic] and for a week or so after 14 April 2009, Mr Nicholls has had access to a copy of the electronically stored seized material.  There is no satisfactory evidence why he could not, within the time allowed as extended up to 7 May 2009, have completed his inspection of that material so as to list the documents in it over which legal professional privilege is claimed, and to provide evidence in support of those claims where they have been disputed.  He has simply not done so, over a period of nearly six months.  In fact, in my view, he has deliberately prolonged the process to frustrate the resolution of that issue.

21                  Having regard to the procedural history before his Honour and to the delays which his Honour has addressed at some length in his reasons, in my opinion the special reason which is identified by Mr Nicholls, being the need to prepare for his appeal in the court, is not a special reason.  The applicant’s draft notice of appeal, and indeed the applicant, during argument, continues to make the claim that he is entitled to claim legal professional privilege in respect of all of the documents seized under the search warrant.  He has continued therefore, notwithstanding the criticism by the primary judge over his inability to particularise the documents which he said are the subject of legal professional privilege, to claim that every document which is presently in the custody of the Court is subject to that privilege. 

22                  The draft notice of appeal, in my opinion adopts if I might say, the same approach which was apparently adopted before his Honour, which is to refuse to descend into any particularity about the complaints.  The draft notice of appeal does not identify any real ground of appeal, but is merely a statement of complaint of his Honour’s reasons generally. 

23                  In the hearing before his Honour, Mr Nicholls’ claim for legal professional privilege failed because he adduced no evidence in support of the claim that any of the documents were communications which were protected by legal professional privilege.  Insofar as some of his evidence, and in particular his evidence about his inability to open some of the electronic documents, not only was that evidence rejected but his Honour found that the evidence was untruthful. 

24                  There is, in my opinion, nothing in the draft notice of appeal which would indicate that the applicant has any real prospects of success in relation to an appeal from his Honour’s orders.  The draft notice is, as I have said, merely an argument which takes issue with the whole of his Honour’s reasons.  For those reasons I am not satisfied that there are any real prospects of success.  In the circumstances where no special reason has been advanced and where there are little or no prospects of success on appeal, it would be inappropriate to grant the order sought. 

25                  I therefore refuse the application for an extension of time within which to appeal.

Associate:

Dated:         4 September 2009