ZIZZA v FC of T

Judges:
Katz J

Court:
Federal Court

Judgment date: 1 February 1999

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Katz J

Subsection 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (``the AAT Act'') provides that ``[a] party to a proceeding before'' the Administrative Appeals Tribunal (``the Tribunal'') ``may appeal to'' this Court, ``on a question of law, from any decision of the Tribunal in that proceeding.'' [reported at Case 8/98, 98 ATC 155]

2. (The so-called ``appeal'' mentioned in subs 44(1) of the AAT Act is actually an invocation of this Court's original jurisdiction: see subs 19(2) of the Federal Court of Australia Act 1976 (Cth). However, it seems easier simply to use in these reasons the terminology used in subs 44(1) of the AAT Act and so I will continue to do so.)

3. In the present proceeding, Mr Zizza has purported to institute an appeal in this Court in accordance with subs 44(1) of the AAT Act.

4. By way of background to his purported appeal, I mention that, on 26 November 1997, Mr Zizza had lodged with the Tribunal eleven applications, each one for a review of a separate decision of the Commissioner of Taxation (``the Commissioner''). The eleven decisions concerned were said in the applications to have been made by the Commissioner on 5 June 1992 and to have been received by Mr Zizza on or about 6 June 1992. The decisions had been ones to disallow objections made by Mr Zizza on 11 December 1989 against income tax assessments issued to him by the Commissioner on 9 October 1989 in respect of the years of income 1978 to 1988 inclusive. The assessments had resulted from an audit and investigation of Mr Zizza's affairs by officers of the Commissioner which had begun in 1983 and had extended over a number of years.

5. A time limit of sixty days from service of notice of the Commissioner's decisions had existed for the lodging of Mr Zizza's applications, as I will explain below, and each of Mr Zizza's eleven applications for review had, as I have already mentioned, been lodged long after the expiration of that time limit. Accordingly, concurrently with the lodging of those applications, Mr Zizza lodged eleven further applications, each one said to be made ``in pursuant [sic] of subsection 29(7) of the Administrative Appeals Tribunal Act, 1975'' and each one seeking an extension of time for the making of a corresponding application for review of the Commissioner's decision. On 9 April 1988, the Tribunal refused to grant the eleven extension of time applications and Mr Zizza's purported appeal to this Court is in respect of those eleven refusals.

6. It was subpar 14ZZ(a)(i) of the Taxation Administration Act 1953 (Cth) (``the Administration Act'') which had conferred on Mr Zizza the right to apply to the Tribunal for review of the Commissioner's eleven decisions, each of those decisions being a ``reviewable objection decision'' within the meaning of s 14ZQ of that Act. Further, par 14ZZA(a) of that Act had provided that the AAT Act applied in relation to the review of reviewable objection decisions, subject to the modifications set out in the Division of the Part of the Act in which s 14ZZA appeared. One such modification was set out in s 14ZZC; it was that s 29 of the AAT Act applied in relation to a reviewable objection decision as if subss (1)-(6) of that section were omitted and a new subs (1) were substituted. The effect of the notionally substituted subs (1) was that an application for a review of a reviewable objection decision had to be lodged within sixty days of service of notice of the decision.

7. It would, of course, have been open to the legislature to make the sixty day time limit just mentioned an absolute one; that, however, it did not do. What it did instead was to provide in par 14ZZA(c) of the Administration Act, ``The AAT Act applies in relation to... AAT extension applications... subject to the modifications set out in this Division.'' The term ``AAT extension application'' was defined relevantly in s 14ZQ of the Administration Act as meaning, ``an application under subsection 29(7) of the AAT Act that relates to a review of a reviewable objection decision''.

8. When one turns to the modifying provisions of the Division of the Part of the Act

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in which s 14ZZA appears, one finds that none of the modifications of the AAT Act in relation to applications under subs 29(7) of that Act actually modifies subs 29(7) of that Act itself (or subss 29(8)-(10), all of which are consequential upon subs 29(7)). (One may compare the legislature's treatment in the Administration Act of subss 29(1)-(6) of the AAT Act with its treatment of subss 29(7)-(10) of the AAT Act.) Instead, the modifications of the AAT Act in relation to applications under subs 29(7) of that Act are of other provisions of the AAT Act, particularly those relating to publicity both of hearings and of decisions: see s 14ZZE of the Administration Act, modifying s 35 of the AAT Act, and s 14ZZJ of the Administration Act, modifying s 43 of the AAT Act.

9. Given the provisions to which I have referred above, it appears to me that there can be no doubt that Mr Zizza had been correct when he had stated in each of his extension of time applications that such application had been made ``in pursuant [sic] of subsection 29(7) of the Administrative Appeals Tribunal Act, 1975''. Each of those applications had indeed been made under subs 29(7) of the AAT Act, rather than, for instance, under some provision of the Administration Act, as had been his applications for review of the Commissioner's decisions. Under subs 29(7) of the AAT Act, the Tribunal had a discretionary power to override the sixty day time limit imposed by operation of s 14ZZC of the Administration Act in respect of applications for review of reviewable objection decisions.

10. Returning now to the terms of subs 44(1) of the AAT Act, implicit in Mr Zizza's purported appeal to this Court under that subsection were three assertions. They were: first, that the making of each of his eleven applications to the Tribunal under subs 29(7) of the AAT Act had given rise to a ``proceeding before the Tribunal'' within the meaning of subs 44(1) of the AAT Act; secondly, that he had been a ``party'' to each such proceeding within the meaning of subs 44(1) of the AAT Act; and, thirdly, that the refusal by the Tribunal in each such proceeding to exercise the time-extending power conferred upon it by subs 29(7) of the AAT Act had been a ``decision in that proceeding'' within the meaning of subs 44(1) of the AAT Act.

11. Those three implicit assertions were neither made explicit in argument before me by Mr Zizza nor challenged by the Commissioner. However, I consider that I should say something about each of them in these reasons, since unless they were all correct, this Court has no jurisdiction in the present proceeding.

12. As to the first of those implicit assertions, any challenge to its correctness would appear to have been doomed to failure from the outset, given the definition of ``proceeding'' in subs 3(1) of the AAT Act: see, in particular, par (f) of that definition, providing that ```proceeding', in relation to the Tribunal, includes... any other application to the Tribunal under this Act...'' (The definition of ``proceeding'' was, incidentally, only added to subs 3(1) of the AAT Act in 1995: see the Law and Justice Legislation Amendment Act (No 1) 1995 (Cth), subs 3(2) and Sch 2, item 3.)

13. As to the second of those implicit assertions, if the making of an application under subs 29(7) of the AAT Act gives rise to ``a proceeding before the Tribunal'' within the meaning of subs 44(1) of the AAT Act, it would seem impossible to argue successfully that the person who makes that application is not a ``party'' to that proceeding.

14. As to the third of those implicit assertions, I note that it was argued by the respondent in
Telstra Corporation Ltd v Razmovski (1994) 36 ALD 22 at 28 (Sackville J) that an exercise by the Tribunal of the power conferred upon it by subs 29(7) of the AAT Act (not, as in the present case, a refusal by it to exercise that power) was not a ``decision'' within the meaning of subs 44(1) of the AAT Act. However, the Court did not rule upon that argument, saying that it was unnecessary to do so, because the respondent had succeeded on his arguments as to the merits of the matter. (I will return to the case below because of the Court's treatment of certain of those arguments on the merits.) It would appear that for the Court to have dealt first with the respondent's arguments as to the merits of the matter, rather than with his jurisdictional argument, inverted the appropriate order of dealing with such arguments. Be that as it may, the fact is that the jurisdictional argument was not ruled upon. However, even unassisted by such authority as might have been provided by that case on the point I am now discussing, I can see no good reason, as at present advised, to conclude that a

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refusal by the Tribunal to exercise the power conferred upon it by subs 29(7) of the AAT Act is not a ``decision'' within the meaning of subs 44(1) of the AAT Act.

15. I therefore proceed herein on the basis that what I have so far been calling Mr Zizza's ``purported'' appeal to this Court was competent.

16. It is convenient now to say something of the Tribunal's general approach, as disclosed by its statement of findings and reasons, to the exercise of the discretionary power conferred upon it by subs 29(7) of the AAT Act.

17. That approach was, as is usual in applications under subs 29(7) of the AAT Act, founded upon the reasons for judgment of Wilcox J in the case of
Hunter Valley Developments Pty Limited v Cohen (1984) 3 FCR 344. That case had been one in which an extension of time to lodge an application to this Court for an order of review of a decision of the Minister for Home Affairs and Environment was being sought under par 11(1)(c) of the Administrative Decisions (Judicial Review) Act 1977 (Cth). Wilcox J (at 348-350) had summarised six principles ``to guide, not in any exhaustive manner, the exercise of the court's discretion'' under par 11(1)(c). The Tribunal quoted in part Wilcox J's summary of his six principles, making it apparent, not only that it treated those six principles as equally applicable to the exercise of the Tribunal's discretion under subs 29(7) of the AAT Act, but also that it acknowledged the ``non-exhaustive guiding'' character of those principles when applied in the context of subs 29(7) of the AAT Act. Having set out those six principles, the Tribunal then went through each of them in turn, seeking to apply it to the facts of the matter before it, as it perceived those facts to be. When applying the first of the six principles, which relates to the delay involved in applying for an extension of time and the acceptability of the explanation, if any, given for that delay, the Tribunal noted that the principle had subsequently been qualified to some extent by the decision of a Full Court of this Court in
Comcare v A'Hearn (1993) 45 FCR 441 (Black CJ and Gray and Burchett JJ).

18. I mentioned at the outset of these reasons that the appeal provided for by subs 44(1) of the AAT Act is an appeal ``on a question of law''. Acknowledging the existence of that limitation on the right of appeal conferred upon him by subs 44(1), it was Mr Zizza's position that all of the errors which he ultimately submitted had been committed by the Tribunal when refusing his applications for extensions of time fell into the category of legal, as opposed to factual, errors. (I say ``ultimately'' submitted, because, during the course of argument before me, he abandoned a number of the claims of error which he had made in his written submissions filed in the proceeding in this Court.)

19. Among Mr Zizza's claimed legal errors on the part of the Tribunal was one relating to its application against him of the third of the six principles summarised by Wilcox J in Hunter Valley Developments, which principle was that, ``Any prejudice to the respondent including any prejudice in defending the proceedings occasioned by the delay is a material factor militating against the grant of the extension''. It appears to me to be convenient to deal first with that claimed legal error on the part of the Tribunal.

20. I begin by setting out what the Tribunal said (relevantly) on the matter,

``... I think that there is a possibility of real prejudice to the Respondent. This audit commenced in November 1983 and extended over a number of years. It is likely, as contended by the Respondent, that those of its officers involved in the audit and investigation of the Applicant may be required to give evidence as to how the... assessments were finally reached; such evidence may in the light of the delay be less available than it would have been had the review been sought in time.''

1. As he stated in his written submissions filed in the proceeding in this Court (and as he repeated in his oral submissions before me), Mr Zizza's attack on the Tribunal's application against him of the ``respondent's prejudice'' principle was based on two matters: first, that the Commissioner ``did not go into evidence in the Tribunal (be it by witnesses or the tender of documents)''; and, secondly, that ``none of the Respondent's documents tendered into evidence by the Applicant [in two particular exhibits] make any... contention of prejudice [to the Commissioner if an extension of time is granted]''. Precisely what category of legal error was said by Mr Zizza to have flowed from the Tribunal's application against him of the ``respondent's prejudice'' principle in the light of those two matters was not explicitly stated at

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any time, but it must have been legal error of the ``no evidence'' type.

The Commissioner neither disputed before me the correctness of either of the two matters relied upon by Mr Zizza to establish legal error in the Tribunal's application against him of the ``respondent's prejudice'' principle nor pointed to any document of the Commissioner's contained in some other exhibit tendered by Mr Zizza before the Tribunal which had asserted prejudice to the Commissioner if an extension of time were granted. The Commissioner's submission before me was limited to one that the evidentiary material which had been before the Tribunal and upon which it had relied in reaching the conclusion that there existed ``a possibility of real prejudice to the Respondent'' if an extension of time were granted had in itself justified that conclusion. It was submitted that no further evidentiary material had been necessary for the purpose.

A case which may be thought relevant on the question whether the Tribunal committed legal error by applying against Mr Zizza the ``respondent's prejudice'' principle in the circumstances above described is
Windshuttle v DFC of T 93 ATC 4992; (1993) 46 FCR 235 (von Doussa J).

In Windshuttle, the Tribunal had affirmed two decisions by the Commissioner not to extend the time within which a taxpayer was required to lodge with the Commissioner an objection to an income tax assessment. The background to the first of the Commissioner's two decisions (which is the only decision to which it is necessary to refer for present purposes) was as follows: Windshuttle was served in April 1991 with a notice of assessment in respect of the year of income 1986; she not having paid the tax assessed, the Commissioner then sued her for it, obtained a default judgment against her and began bankruptcy proceedings against her based on that judgment; she then applied to have the default judgment set aside and also applied for an adjournment of the bankruptcy proceedings; in an affidavit filed in the bankruptcy proceedings and served on the Commissioner in December 1991, her solicitor made an assertion of fact which, if accurate, meant that the assessment had been excessive; the Commissioner had been unaware, until being served with that affidavit, that Windshuttle disputed the quantum of her assessment; on 14 May 1992, Windshuttle both lodged with the Commissioner an out-of-time objection to the assessment, based on the fact earlier asserted by her solicitor, and applied to the Commissioner for an extension of time within which to lodge that objection.

In affirming the Commissioner's decision to refuse to extend the time for the lodging of the objection, the Tribunal had had regard to the Hunter Valley Developments principles, principles which the Court said (at ATC 4994; FCR 238) were ``of a general nature applicable in... situations where there is a discretionary power to extend a procedural time limit''. However, although it had affirmed the decision, the Tribunal, in the course of doing so, had rejected an argument by the Commissioner based upon the ``respondent's prejudice'' principle. That rejection had provoked a notice of contention by the Commissioner in the taxpayer's appeal to the Court under subs 44(1) of the AAT Act.

The Court allowed Windshuttle's appeal against the Tribunal's decision and remitted her extension of time application to the Tribunal for rehearing. In doing so, it rejected the Commissioner's attack on the Tribunal's rejection of the Commissioner's ``respondent's prejudice'' argument, saying, when doing so (at ATC 5003-5004; FCR 249-250),

``... The kind of prejudice which is relevant [ in extension of time applications] is prejudice that could arise to the opposing party in properly and fairly dealing with the subject matter of the dispute that will require determination if the extension of time is granted. Relevant matters will be whether witnesses have disappeared or their recollections have faded (provided of course that the evidence of the witnesses would have been material:
Ulowski v Miller [1968] SASR 277 at 283-284 and cannot be refreshed
Wedesweiller v Cole (1983) 47 ALR 528 at 534); whether avenues of useful enquiry have dried up or become difficult to pursue; and whether material documents have been destroyed. In a case like the present it may be open to the party potentially entitled to recover money to establish that by reason of the delay, the financial resources of the applicant have so altered for the worse that the chance of recovery of whatever sum is ultimately found to be due has seriously diminished.

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But as Bray CJ observed in Ulowski v Miller at 284 and also in
Victa Limited v Johnson (1975) 10 SASR 496 at 504, a court (or tribunal) should be slow to infer something to the existence of which the party asserting it is unwilling to depose. So, if a party against whom an extension of time is sought, intends to oppose that extension on the ground of prejudice, that party should adduce evidence which shows the nature and extent of that prejudice. In the present case no cause for prejudice beyond those matters listed above was asserted or deposed to.''

(I interpolate here that ``those matters listed above'' had not related to that type of prejudice which was held by the Court to be relevant to the ``respondent's prejudice'' principle, but rather to other types of prejudice.)

``In my opinion the AAT did not act unreasonably in holding there was no prejudice to the Commissioner by reason of the delay prior to 14 May 1992, and the AAT did not misunderstand the relevant principles of law to be applied. Furthermore, as the AAT found that there was no satisfactory explanation for that delay, and brought that lack of explanation into the balance as a factor against the applicant in the exercise of the discretion, there would have been a serious risk of `double counting' the dilatory behaviour of the applicant if prejudice to the Commissioner had been inferred simply from the fact of the delay, and from the failure to bring to the Commissioner's attention the fact that the applicant disputed the basis for the assessment prior to December 1991.''

Windshuttle's Case was thus a case in which, in the absence of any evidentiary material showing the nature and extent of any relevant prejudice to the Commissioner if an extension of time were granted, but in the presence of evidentiary material showing the extent of the delay involved, the Tribunal was held to have acted reasonably and to have understood the relevant principles of law to be applied when it rejected the Commissioner's ``respondent's prejudice'' argument. Further- more, the case appears to me to provide some support for an argument that, if the fact of delay by an applicant for an extension of time is held to make relevant against the applicant in all of the circumstances the first of the Hunter Valley Developments principles, it would be legally erroneous for that fact alone also to be held to make relevant against the applicant in all of the circumstances the third of the Hunter Valley Developments principles - the argument would presumably be that the third principle was an irrelevant consideration in the circumstances or that a decision to refuse an extension of time taking into account against the applicant the third principle was unreasonable in the ``Wednesbury'' sense in the circumstances.

Of course, the approach of the Tribunal in the present matter was much different from that of the Tribunal in the Windshuttle Case.

Here, the Tribunal did count against Mr Zizza the possibility of prejudice to the Commissioner if an extension of time were granted, nonetheless though the Commissioner had adduced no evidentiary material showing the nature and extent of any prejudice which would be suffered if an extension of time were granted. In spite of that absence of such evidentiary material, the Tribunal felt itself able to conclude that it was ``likely'' that those of the Commissioner's officers involved in the audit and investigation of Mr Zizza's affairs ``may be required to give evidence as to how the... assessments were... reached'' and that ``such evidence may in the light of the delay be less available than it would have been had the review been sought in time''.

I should mention now two difficulties which stood in the way of the Tribunal's conclusion that it was ``likely'' that those of the Commissioner's officers involved in the audit and investigation of Mr Zizza's affairs might be required to give evidence as to how the assessments were reached, assuming that a review proceeding were to take place. First, the burden of proof in any such proceeding would be on Mr Zizza (see subpar 14ZZK(b)(i) of the Administration Act), so that the question of the Commissioner's going into evidence, whether oral or written, in a review proceeding might never arise. Secondly, it might be that, if the Commissioner did go into evidence, the Commissioner's written records of the audit and investigation of Mr Zizza's affairs were such that no oral evidence from the relevant officers would be required on the Commissioner's behalf.

I should also mention now that the Tribunal counted against Mr Zizza the possibility of prejudice to the Commissioner if

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an extension of time were granted, based on Mr Zizza's delay, in circumstances in which it had already counted some of that delay against him in connection with the first of the Hunter Valley Developments principles, on the basis that he had not given an acceptable explanation for it.

In spite, however, of what, by reason of the matters I have mentioned above, I consider to be the unsatisfactory nature of the Tribunal's application of the third of the Hunter Valley Developments principles, I have concluded that the Tribunal did not err in law in that application.

First, I mention that I do not decide upon the soundness of the possible abuse of discretion argument to which I referred in par 27 of these reasons. No such argument was made before me by Mr Zizza. In any event, I have no reason to think that Mr Zizza submitted to the Tribunal that, if it took his delay into account against him in applying the first of the Hunter Valley Developments principles, it was not open to the Tribunal, based solely upon that delay, also to infer prejudice to the Commissioner if an extension of time were granted. In the absence of such a submission to the Tribunal, it would appear not to have been open to Mr Zizza to make the abuse of discretion argument before me: see, for example,
Secretary, Department of Social Security v Cooper (1990) 26 FCR 13 at 18 (Morling, Burchett and Lee JJ).

Next, I reject Mr Zizza's (assumed) ``no evidence'' argument.

In that connection, I return now to the Razmovski Case, to which I have already referred to in par 14 of these reasons. As I have already mentioned, that was an appeal under subs 44(1) of the AAT Act against a decision by the Tribunal under subs 29(7) of the AAT to extend time. Among the arguments made by Mr Gleeson QC, counsel for the appellant, on the appeal to the Court were arguments that there had been no evidence to support certain of the Tribunal's findings. In rejecting those arguments, Sackville J said (at 26-28),

``In relation to the third and fourth arguments put by Mr Gleeson, it is necessary to bear in mind that a mistaken finding of fact (if one has been made) is not an error of law for the purposes of s 44(1):
Waterford v The Commonwealth (1987) 163 CLR 54, at 77; 12 ALD 741; 71 ALR 673 at 689, per Brennan J. Even if the process of reasoning on factual questions is demonstrably unsound or illogical, no error of law is disclosed:
R v District Court; Ex parte White (1966) 116 CLR 644, at 654;
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, at 356; 21 ALD 1 at 24; 94 ALR 11 at 38. The absence of any evidence to support a finding of fact is, however, a question of law. Many of Mr Gleeson's criticisms of the reasoning of the AAT seemed to me to relate to the correctness of the findings of fact. Whether or not the AAT drew the correct conclusions from the evidence is not, however, the issue in these proceedings.

...

While the reasoning of the AAT may not be altogether convincing, I think that there was some evidence, albeit sparse, to support [two of] the findings [under attack]...

...

... [T]he evidence before the AAT provided at least a foundation for the findings made. I repeat that whether or not those findings were correct is not the issue in these proceedings.

Mr Gleeson also complained of [another] finding by the AAT.... But the complaint really goes to the AAT's evaluation of the evidence, and does not constitute an error of law.

I have already said more than once that the issue before me is not whether the AAT was correct in reaching the factual conclusions that it did. I accept that Mr Gleeson's criticisms of the reasoning process employed by the AAT have considerable force. But in my view it cannot be said that there was no evidence to support the challenged findings. Accordingly, there was no error of law, within s 44(1) of the Act, in the findings of fact made by the AAT.''

The remarks of Sackville J which I have just quoted appear to me to be equally applicable in the present case with respect to the issue I am now discussing. This is also a case in which there was some evidentiary material, ``albeit sparse'' from which a finding, namely, the possibility of prejudice to the Commissioner if extensions of time were granted, might be (and was) inferred, so that the claim of legal error in the making of the finding fails.

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That delay itself may be evidentiary of prejudice to a person against whom an extension of time is sought is implicit in that part of von Doussa J's reasons for judgment in Windshuttle in which he referred to the risk of double counting ``if prejudice to the Commissioner had been inferred simply from the fact of delay''. His Honour was there, as it seems to me, accepting the persuasive force on the question of prejudice of the simple fact of delay, but sounding a note of caution, for another reason, about the drawing of the inference. See also, in an extension of time context not involving administrative law, the reasons for judgment of McHugh J in
Brisbane South Regional Health Authority v Taylor (1996) Aust Torts Reports ¶81-402; (1996) 186 CLR 541, in particular, at Aust Torts Reports 63,637; CLR 556 (``... the long delay gave rise to a general presumption of prejudice'').

In spite of the conclusion which I have reached on this aspect of the case, I should emphasise that I agree entirely with von Doussa J's injunction that, if a party against whom an extension of time is sought in the Tribunal intends to oppose that extension on the ground of prejudice, that party should adduce evidentiary material which shows the nature and extent of that prejudice. In the absence of such evidentiary material, that party should not be surprised if the Tribunal refuses to conclude that that party would suffer prejudice if an extension of time were granted.

I deal next with Mr Zizza's claim that the Tribunal erred in law in its application of the fifth of the Hunter Valley Development principles, namely, ``The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted''.

I begin by setting out what the Tribunal said (relevantly) on the matter,

``[I]t is possible that there is some argument to be made by the Applicant on the merits in respect at least of some of the amounts claimed by him... However, the fact that it is conceivable that there is some argument to be made on the merits in favour of the Applicant does not in my view outweigh the other considerations. Merit alone is not a sufficient ground to grant the extension...''

Mr Zizza's attack on the Tribunal's application of the ``merits'' principle to the facts before it as it perceived them to be was in two parts.

First, Mr Zizza argued that, when the Tribunal is deciding whether to exercise its discretion under subs 29(7) of the AAT Act in relation to an application or proposed application for review of a reviewable objection decision, it must give to the consideration relating to the merits of the substantial application greater weight than it does to any other relevant consideration. Reviewable objection decisions are to be differentiated in that respect from all other decisions in respect of which applications under subs 29(7) may be made. Mr Zizza then submitted that the Tribunal's statement of findings and reasons demonstrated that it had not given to the consideration relating to the merits of the substantial application greater weight than it had to any other relevant consideration when deciding whether to exercise its discretion under subs 29(7); it therefore followed that the Tribunal had committed legal error.

As to Mr Zizza's submission that the Tribunal's statement of findings and reasons demonstrated that it had not given to the consideration relating to the merits of the substantial application greater weight than it had to any other relevant consideration when deciding whether to exercise its discretion under subs 29(7), I accept it. However, the real question concerning this part of Mr Zizza's attack on the Tribunal's application of the ``merits'' principle is whether the Tribunal was obliged in law to give to the consideration relating to the merits of the substantial application greater weight than it did to any other relevant consideration when deciding whether to exercise its discretion under subs 29(7).

In my view, it was not. Given that subs 29(7) of the AAT Act applies in relation to a broad range of reviewable decisions other than objection decisions and given also that (as Mr Zizza conceded in argument before me) there is no support in the cases for the Tribunal's being required to give greater weight to the ``merits'' consideration in connection with those other classes of reviewable decisions than it is to the other considerations mentioned in Hunter Valley Developments, I am quite unable to see how, as a matter of construction of subs 29(7) in isolation, a ``ranking'' approach could be said to be required solely in connection with

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objection decisions. That subs 29(7) may be described as ameliorating legislation does not, contrary to a submission made by Mr Zizza, alter my view in that respect.

Nor is a ``ranking'' approach in applications under subs 29(7) of the AAT Act in connection with objection decisions expressly or impliedly required by the Administration Act. Mr Zizza did refer me to the Administration Act's modification of various provisions of the AAT Act for the purpose of making an argument that objection decisions were ``unique'', so far as Tribunal review is concerned. That may be so, but what is important for present purposes is that: first, provisions of s 29 of the AAT Act other than subs 29(7) (particularly subss 29(1)- (6)) were modified by the Administration Act; secondly, provisions of the AAT Act relating to applications under subs 29(7) of the AAT Act (particularly ss 35 and 43) were modified by the Administration Act; and, thirdly, subs 29(7) of the AAT Act itself was not modified. The obvious inference from those matters is that the legislature was content that objection decisions should be treated, so far as concerns the considerations relevant to the exercise of the discretion under subs 29(7) of the AAT Act, like all other decisions in respect of which applications under subs 29(7) could be made.

Mr Zizza sought to derive support from the decision of a Full Court of this Court in
Lighthouse Philatelics Pty Limited v FC of T 91 ATC 4942; (1991) 32 FCR 148 (Lockhart, Burchett and Hill JJ) for his argument as to the necessity to give first rank to the ``merits'' consideration in an application under subs 29(7) of the AAT Act in relation to an application or proposed application for review of a reviewable objection decision. That case was, however, concerned, not with subs 29(7) of the AAT Act, but with par 190(a) of the Income Tax Assessment Act 1936 (Cth) (since replaced by pars 14ZZK(a) and 14ZZO(a) of the Administration Act), which provided, ``In proceedings under this Part on a review before the Tribunal or on appeal to a court... the taxpayer shall, unless the Tribunal or court otherwise orders, be limited to the grounds stated in his objection''.

The essence of the Court's reasoning in the case is contained in the following passage from its reasons for judgment (at ATC 4949; FCR 156),

``... The amendment to s 190(a) introduced by the Act No 48 of 1986 was of a remedial kind and thus must be construed in accordance with well established principles relating to ameliorating legislation. It follows that the Tribunal or the Court has power to permit a taxpayer to argue that the taxable income and tax payable are incorrect and 'excessive' for reasons not initially advanced, even if those reasons involve, as in the present case, entirely fresh grounds in substitution for the original grounds, or even if they require consideration of matters not considered by the Commissioner in the original assessment process.

The decision whether to allow an amendment ought to be made on the same considerations of justice upon which such decisions are regularly made in litigation. It was in the past a reproach to the law that the real issues in taxation appeals could be refused a hearing for a defective objection, and Parliament has legislated to remove that reproach; an amendment under s 190 should not be considered with reluctance, but on its merits.''

I can find nothing in that reasoning which supports Mr Zizza's argument that a differential construction should be given to subs 29(7) of the AAT Act in connection with applications or proposed applications to review objection decisions.

Of course, even if Mr Zizza's argument about the need for a differential construction of subs 29(7) of the AAT Act in connection with applications or proposed applications to review objection decisions had been correct, that argument would have been of little assistance to him if the Tribunal had concluded, without legal error, that his applications for review of the objection decisions were of doubtful merit. To give primacy to the ``merits'' consideration in those circumstances would no doubt have led to the refusal of his extension of time applications in any event. Presumably, it was for that reason (at least) that the second part of Mr Zizza's attack on the Tribunal's application of the ``merits'' principle was on the Tribunal's conclusion that his applications for review of the objection decisions were of doubtful merit.

Mr Zizza's submission in that respect was that the merits of his substantial applications for review were strong and that, in failing so to conclude, the Tribunal had ``failed to take

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account of the following relevant factors going to the strength of those merits''. The ``relevant factors'' then set out were items of oral and documentary evidentiary material which had been before the Tribunal on Mr Zizza's extension applications.

As with the Tribunal's claimed legal error in its application of the ``respondent's prejudice'' principle, Mr Zizza did not deign to identify the type of legal error which he claimed the Tribunal had committed in reaching a conclusion about the merits of Mr Zizza's substantial applications. One might infer from his use of the language of failure to take into account relevant factors that the legal error alleged was an abuse of discretion (in failing to take into account relevant considerations in the exercise of that discretion). If so, that allegation would be doomed to fail, because we are not here concerned with that part of the administrative process which involves the exercise of a discretion, but rather with an anterior part of it which involves the process of fact-finding. In truth, what Mr Zizza is seeking to do in this part of his case (as in others which I will mention subsequently) is that which Sackville J rightly deprecated in Razmovski's Case, namely, either argue that the Tribunal had not properly evaluated the evidentiary material before it or argue that it had drawn the incorrect conclusions from that evidentiary material, neither of which things are permissible issues in this proceeding.

Before I leave the matter of the Tribunal's application of the ``merits'' principle, it is convenient to dispose of two others of Mr Zizza's claimed legal errors on the part of the Tribunal. Those claimed legal errors appeared, not in that part of the Tribunal's statement of findings and reasons in which it was seeking to apply the ``merits'' principle to the facts of the matter as it perceived them to be, but rather in the introductory part of its statement of findings and reasons, in the course of which it was seeking to summarise Mr Zizza's evidence before it as regarded the merits of his substantial applications.

First, in the course of summarising Mr Zizza's evidence before it as regarded the merits of his substantial applications, the Tribunal discussed his evidence regarding a company which it described as ``R Pty Limited''. In doing so, it referred to Mr Zizza's evidence before it that that company was owned by ``Erica Cora Williams and the other half is in trust for my children''. It then said that, ``R Pty Limited is undoubtedly connected with the Applicant''. Mr Zizza claimed that the Tribunal had committed legal error by reaching that conclusion. Precisely what type of legal error was not identified; the only one possible could have been ``no evidence''. It appears to me to be sufficient to dispose of the claimed legal error to say that the fact that Mr Zizza's children were the beneficial half-owners of the company permitted the Tribunal to conclude that there was a connection between him and the company, but, if that were not considered sufficient, then Mr Zizza's evidence, given immediately before his evidence about his children's ownership of the company, that he was employed by the company to collect rents on its behalf, would plainly do. (Of course, the Tribunal was neither construing nor applying a statute when it expressed the view that Mr Zizza was ``connected with'' the company, but it is interesting to note that, when a statute speaks of a thing being used ``in connexion with'' another thing, it is using ``words of the widest import'': see, for example,
Telstra Corporation Ltd v FC of T 96 ATC 4805 at 4815; (1996) 68 FCR 566 at 580 (Lindgren J). No reason appears to think that the Tribunal was using the words which it used with any narrower import.)

Secondly, in the course of summarising Mr Zizza's evidence before it as regarded the merits of his substantial applications, the Tribunal said that Mr Zizza had given evidence that ``he has no books and records of any kind in respect of the relevant years''. It subsequently said, ``The Tribunal considers that in the absence of proper books and records, the Applicant may find it difficult, if not impossible, to discharge any relevant onus in this regard.'' Treating those statements as a finding by the Tribunal that Mr Zizza had no books and records of any kind in respect of the relevant years, rather than as a summary by it of the evidence Mr Zizza had given on the topic, Mr Zizza claimed that the Tribunal had committed legal error by reaching that conclusion. Precisely what type of legal error had been committed was, again, not identified; again, in spite of the use of the language of a failure to take into account relevant factors, the only one possible could have been ``no evidence''.

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ATC 4176

The statements of the Tribunal's which I have quoted in the preceding paragraph and which were said to demonstrate legal error on the part of the Tribunal were, as the Tribunal itself said, made in a context and I consider that I should set them out in that context. What was said was,

``The Applicant conceded in respect of a number of relevant years that there were amounts which should properly be brought to tax; in respect of other and substantial amounts, his evidence was that he could not remember. It is important in this context to note that the Applicant said that he has no books and records of any kind in respect of the relevant years...

The Tribunal considers that in the absence of proper books and records, the Applicant may find it difficult, if not impossible, to discharge any relevant onus in this regard.''

Thus, when the Tribunal spoke of Mr Zizza's having given evidence that he had no books and records of any kind in respect of the relevant years, it was referring to his having given evidence that he had no books or records recording amounts which should or should not properly be brought to tax. In fact, Mr Zizza had given the following evidence in response to a question from the Tribunal, ``I didn't keep any record of what I earned. What do you think I was earning, millions?'' So far as I am concerned, the Tribunal's statement was adequately summarising that evidence of Mr Zizza's and, if the Tribunal had found that Mr Zizza had no books and records of any kind in respect of the relevant years recording amounts which should or should not properly be brought to tax, then it could not be said that there had been no evidence to support that finding. However, as it does not appear to me that the Tribunal did make that finding, the question simply does not arise.

I turn now to Mr Zizza's claim that the Tribunal committed legal error in its application of the second of the Hunter Valley Developments principles, which, as summarised by the Tribunal, is as follows,

``A distinction is to be made between the case of a person who, by non-curial means, has continued to make the decision-maker aware that he contests the finality of the decision and a case where the decision- maker was allowed to believe that the matter was finally concluded.''

In the course of its discussion of that principle, the Tribunal said, ``The Respondent may on various occasions have formed the view that the Applicant did not intend to dispute the objection decisions for the relevant years.''

Mr Zizza complained of legal error in the making of that finding. In doing so, he again used the language of the Tribunal's having failed to take account certain relevant factors. I do not propose to repeat here what I have said earlier about his use of that language. The so- called relevant factors relied upon by him may be summarised as being the failure of the Commissioner to put on any evidentiary material before the Tribunal and the existence of correspondence from Mr Zizza's solicitors (Bowen and Gerathy) and accountants to the Commissioner, which correspondence was said to communicate unequivocally Mr Zizza's intention to challenge the objection decisions.

So far as the first of those two matters is concerned, I do not accept that it was not open in law to the Tribunal to reach a conclusion about the Commissioner's state of mind in the absence of direct evidence from the Commissioner (effectively, the Commissioner's officers) about that state of mind.

So far as the second of those two matters is concerned, the finding complained of must be understood in context. The statement of the finding was preceded by a statement together with which it should be read. What the Tribunal said was,

``... there were certainly long periods during which there does not appear to have been any correspondence between the parties (for instance between the letters from Bowen and Gerathy to the Respondent dated 8 February 1994 and 21 March 1996). The Respondent may on various occasions have formed the view that the Applicant did not intend to dispute the objection decisions for the relevant years.''

The various occasions on which, according to the Tribunal, the Commissioner may have formed the view that Mr Zizza did not intend to dispute the objection decisions were thus those when Mr Zizza (or his representatives) had not been heard from for a long period. In my view, the silence for long periods of Mr Zizza (or his representatives) was evidentiary material from

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ATC 4177

which it was open to the Tribunal to infer that the Commissioner may have formed a view on various occasions that Mr Zizza did not intend to seek review of the objection decisions.

In so far as Mr Zizza relies, in order to demonstrate legal error on the part of the Tribunal, upon the existence of individual items of correspondence from his solicitors or accountants to the Commissioner, said to communicate unequivocally Mr Zizza's intention to challenge the objection decisions, he is again straying beyond that which is comprehended by legal error. He is in truth merely submitting that the preferable inference to be drawn as to the Commissioner's state of mind from all of the evidentiary material before the Tribunal was the contrary of that which the Tribunal drew. Such a submission raises no question of law.

Now I come to Mr Zizza's submissions that the Tribunal erred in law in a number of respects in its application of the first of the Hunter Valley Developments principles, namely, that relating to the delay involved in applying for an extension of time and the acceptability of the explanation, if any, given for that delay.

I will begin to deal with those submissions by referring to certain background facts.

Those background facts begin with the receipt by Mr Zizza on or about 6 June 1992 of notice that the Commissioner had disallowed Mr Zizza's objections against his assessments. Such notice was given by eleven letters dated 5 June 1992, each of which told the reader to ``refer to attached explanation'' to discover the reasons for the disallowance of the objection in respect of a particular year of income. Concurrently with those eleven letters, one further letter was sent. It does not appear that that further letter was attached to any of the other eleven letters. That further letter referred to formal notices of disallowance decisions applying to all eleven years of income being ``enclosed''. That further letter also contained the following paragraph,

``Repeated failure to supply requested documentation and information resulted in the disallowance of your objections. As further action was dependant [sic] on this documentation the review of your assessments was limited to the information already contained within this office.''

Over a lengthy period following the receipt of those letters, it would appear that Mr Zizza's solicitors took the position with the Commissioner that the eleven letters saying ``refer to attached explanation'' had not constituted effective notices of the disallowance of Mr Zizza's objections, either because the explanation in the further letter had not been ``attached'' to them, as promised, or because there had been only one further explanatory letter, purporting to cover all eleven years of income, rather than an individual explanatory letter for each of the eleven years. (Of course, if Mr Zizza had not been served with effective notices of the Commissioner's objection decisions, no question arose of time running against him for seeking a review in the Tribunal.)

On a number of occasions between June of 1992 and 10 April 1996, the Commissioner asserted to Mr Zizza's solicitors that the notices of the objection decisions had been effectively given. Finally, on the latter date, the Commissioner wrote to Mr Zizza's solicitors as follows,

``Reference is made to previous correspondence in this matter, and in particular your letter of 21 March 1996.

This office has previously explained that your client's objections against the assessments for the years ended 30 June 1978 to 30 June 1988 have been determined in accordance with the Income Tax Assessment Act and the Taxation Administration Act.

Your contention throughout your correspondence is the fact that although eleven (11) formal notices of decision dated 5 June 1992 were received by your client, there was only one covering letter giving a reason for the disallowance of the objection. You therefore allege that no substantive determination of each objection has been made.

Whether a covering letter was or was not attached to each formal notice of decision is of no consequence, as the Commissioner is under no legal obligation to give particulars to the taxpayer of the reasons for disallowing the objection. (
Robinson v DFC of T 84 ATC 4277)

Note that, if a taxpayer applies to the Administrative Appeals Tribunal for review

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ATC 4178

of a decision, the Commissioner is then required to lodge with the Tribunal a statement giving the reasons for the decision (section 14ZZF(1) of the Taxation Administration Act). Where the taxpayer appeals to the Federal Court against an objection decision the Commissioner is required to file a statement outlining the contentions and the facts and issues in the appeal.

Your client has always had the option of applying for a review of the Commissioner's decision pursuant to section 14AA [sic] of the Taxation Administration Act, although he will now be required to also make an application for an extension of time to lodge the request for a review of the objection decisions.''

According to Mr Zizza's oral evidence before the Tribunal, that letter was shown to him by his solicitors and he read it.

Whether as a result of that letter or otherwise, Mr Zizza no longer contends that the notices of 5 June 1992 were not effective notices of the objection decisions (as appears from the form of his applications for review of the Commissioner's objection decisions).

It is convenient now to refer to the errors of law claimed by Mr Zizza to have been made by the Tribunal in connection with its application of the ``delay'' principle. Four separate claimed legal errors were identified, each by reference to a particular passage or particular passages in the Tribunal's statement of findings and reasons. In substance, however, three of the claimed legal errors amounted to the same thing, namely, concluding that Mr Zizza had not given an acceptable explanation for the delay involved. The fourth of the claimed legal errors was somewhat different; it was said to consist of the Tribunal's concluding that Mr Zizza's counsel had eschewed before it any argument that there had been error on the part of Mr Zizza's solicitors in the course of their acting for Mr Zizza in connection with the objection decisions, which error had led to delay in commencing proceedings.

Before dealing with those claimed legal errors, it would, I consider, be useful to say what I understand the Tribunal to have concluded so far as the question of an acceptable explanation for Mr Zizza's delay in commencing proceedings is concerned. When examining its statement of findings and reasons for that purpose, I have done so in accordance with the approach of Brennan CJ and Toohey, McHugh and Gummow JJ in
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. Their Honours there said that two propositions were well settled: first, that a court exercising a supervisory jurisdiction should not be concerned with looseness in the language or unhappy phrasing of the reasons of an administrative decision-maker; and, secondly, that the reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error. Their Honours then said (footnote omitted) that those well settled propositions,

``... recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.... [A]ny court reviewing a decision... must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision.''

As I understand the Tribunal's statement of findings and reasons (read in light of the approach to which I have just referred), the Tribunal did not conclude that there was no acceptable explanation for the entire period of Mr Zizza's delay between 1992 and 26 November 1997; instead, it gave to Mr Zizza the benefit of the doubt so far as the period from 1992 until receipt of the Commissioner's letter of 10 April 1996 was concerned, because the delay during that period may have been due to error on the part of his solicitors. What the Tribunal did conclude was that there was no acceptable explanation for the delay between receipt of that letter and the lodging of the applications for review. The passage in the Tribunal's statement of findings and reasons which most clearly demonstrates that that was its conclusion is the following passage:

``[S]ome delay may have been caused by the solicitors' mistaken belief that the Applicant need not refer the matter to the Tribunal until the relevant annexure [to the eleven similar letters of 5 June 1992] had been furnished. However, and assuming that the Applicant in no way contributed to the

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ATC 4179

solicitors' inaction, any misapprehension was cured by the letter dated 10 April 1996 and there is no explanation for the delay thereafter.''

To deal first with the claimed legal error on the Tribunal's part of concluding that Mr Zizza had not given an acceptable explanation for the delay involved, Mr Zizza's method of seeking to make out that legal error was (as it was in connection with others of his claimed legal errors with which I have already dealt) to submit that the Tribunal had failed to take account of certain listed relevant ``factors'' in reaching that conclusion, which ``factors'', on examination, turn out to be items of evidentiary material before the Tribunal from which it might have inferred that there was an acceptable explanation for the delay, instead of reaching the conclusion which it did. For the reasons I have already given in paragraph 51 above in connection with Mr Zizza's attack on the Tribunal's application of the ``merits'' principle, I reject the submissions of his presently under discussion. They raise no question of law.

(In any event, I note that some of the ``factors'' which the Tribunal is said to have failed to take account of (in other words, some of the items of evidentiary material by which the Tribunal was not persuaded) are in respect of the period for which the Tribunal gave Mr Zizza the benefit of the doubt, on my reading of its statement of findings and reasons. In particular, I refer to the items of evidentiary material relating to the investigation of Mr Zizza's affairs which was carried out by the New South Wales Crime Commission between 1991 and August 1995. The Tribunal did refer to that evidentiary material in its statement of findings and reasons, saying that, in consequence of that investigation, it was ``prepared to accept that the Applicant was handicapped in respect of the proper handling of his affairs up to and including August 1995''.)

To deal now with the claimed legal error on the Tribunal's part of concluding that Mr Zizza's counsel had eschewed before it any argument that there had been error on the part of Mr Zizza's solicitors in the course of their acting for Mr Zizza in connection with the objection decisions, which error had led to delay in commencing proceedings, it appears to me best to begin to discuss that aspect of the matter by setting out the relevant passage from the Tribunal's statement of findings and reasons:

``[T]he errors or neglect of an advisor [sic] will not be visited on his client. It is to be noted though that there was no argument before the Tribunal or contention on the part of the Applicant that in fact his solicitors were at any time in error; indeed that contention was specifically rejected by the Applicant's counsel.''

Next I set out a passage from the transcript of the proceeding before the Tribunal (Mr Block being the Senior Member constituting the Tribunal for the purpose of the proceeding and Mr Bevan being (as he was before me) Mr Zizza's counsel):

``MR BLOCK:... the law... is that the errors of a professional adviser should not be sheeted home to the client... But is this an error?

MR BEVAN: Well no, I am saying two things. My primary submission is it is not, it is having regard to all the circumstances and the nature of this jurisdiction it is not because the solicitor[']s conduct was what a reasonably prudent solicitor would have done in these circumstances. My alternative submission is, if you are against me on that I am saying that where there is no prejudice to the respondent from allowing the applicant to come in and have a hearing on the merits then the applicant should not suffer at what would be a grave injustice where he prima facie can prove a substantial part of the assessments is wrong simply because of some conduct on the part of the solicitor, but I could not make that submission if there were no [sic] prejudice, if there were indeed prejudice on the part of the respondent.''

(Because of the limited portion of the transcript of Mr Bevan's submissions before the Tribunal with which I was favoured, I am unable to tell quite what the ``this'' was to which Mr Block was referring in his question to Mr Bevan which began the passage from the transcript which I have just quoted.)

Yet again, I am dealing with a submission by Mr Zizza of legal error on the part of the Tribunal, the character of which claimed legal error was not identified in argument before me.

The crucial point to be made in connection with this claimed legal error is that,

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ATC 4180

whether or not the Tribunal correctly summarised in its statement of findings and reasons what counsel for Mr Zizza had submitted before it, it did in fact deal with the question whether the delay in commencing proceedings had been due to some error on the part of Mr Zizza's solicitors, recognising that, if it had been, then that delay was not to be visited upon Mr Zizza. As to the period before receipt of the letter of 10 April 1996, the Tribunal concluded that the delay in commencing proceedings might have been due to some error on the part of Mr Zizza's solicitors and so did not count that delay against Mr Zizza (see the quotation in paragraph 73 of these reasons). As to the period after receipt of that letter, it concluded that such delay had not been due to any error on the part of Mr Zizza's solicitors, but rather to their simply carrying out instructions received from Mr Zizza. The latter conclusion was one which, it appears to me, was open to it, especially in the absence, as the Tribunal pointed out, of any evidence by Mr Zizza to support the contrary conclusion and in the presence of his evidence of his awareness of the contents of the letters of 10 April 1996. Nor, I may add, did Mr Zizza attack before me the lawfulness of the latter conclusion, restricting himself instead to a submission of misstatement by the Tribunal of counsel's submission before it. I find it impossible to accept that, in circumstances in which the Tribunal in fact dealt with the question whether the delay in commencing proceedings had been due to some error on the part of Mr Zizza's solicitors, any erroneous summary by it in its statement of findings and reasons of what counsel for Mr Zizza had submitted before it on that question could be a material error (even assuming, without deciding, that it was a legal, as opposed to a factual, error).

(It may also be noted that Mr Zizza's counsel's alternative submission before the Tribunal, as appears from the transcript passage which I have quoted above, was, for reasons which are not apparent to me, expressly predicated on the Commissioner's not being prejudiced by the grant of an extension of time. Of course, the Tribunal did find that real prejudice to the Commissioner if an extension of time were granted was a possibility, a finding which I have already held not to have been legally erroneous. In those circumstances, it might well be said that, even if the Tribunal would otherwise have been under a legal duty to refer in its statement of findings and reasons to that alternative submission, the Tribunal had no need to refer to it in Mr Zizza's case, given the qualified terms in which it had been made and the Tribunal's conclusion on the ``respondent's prejudice'' principle.)

I come now to Mr Zizza's attack upon the Tribunal's application of the sixth of the Hunter Valley Developments principles, namely, whether the grant of an extension of time would be fair as between an applicant therefor ``and other persons otherwise in a like position''.

It was Mr Zizza's submission before me that that potentially relevant consideration in the exercise of the discretionary power under subs 29(7) of the AAT Act had not actually been relevant in the circumstances of his applications for extensions of time, because there had been no evidentiary material before the Tribunal from which it had been open to it to infer that there did exist other persons otherwise in a like position to Mr Zizza. He placed reliance on the Commissioner's failure to go into evidence before the Tribunal, on the absence of any such assertion in any document of the Commissioner's put before the Tribunal by Mr Zizza and on what was said to be the ``extraordinary and unique sequence of events and circumstances'' surrounding Mr Zizza's applications for extensions of time.

In my view, Mr Zizza has misunderstood the nature of the consideration presently under discussion. The Tribunal was entitled to proceed on the basis that there were other persons otherwise in a like position to Mr Zizza simply by reason of the nature of the area of law concerned - income taxation. To require that, before the ``fairness to others'' consideration was relevant in the circumstances, there be specific evidentiary material before the Tribunal establishing the existence of other persons who had objected to their income tax assessments and whose objections had been the subject of unfavourable objection decisions, would be, in my view, to place an entirely unnecessary fetter on the exercise of the Tribunal's discretion.

However, Mr Zizza's argument appears to have gone even further. As I understood it, the argument was (to take one example only of those events and circumstances said to have made Mr Zizza's applications for extensions of time extraordinary and unique), that it had been

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ATC 4181

necessary in the circumstances for there to be evidentiary material before the Tribunal that there were other taxpayers whose affairs had, like Mr Zizza's, been the subject of intensive examination by the New South Wales Crime Commission. In the absence of proof of the existence of such persons, there was no basis, so the argument went, upon which the Tribunal could have had regard to the consideration presently under discussion, because there was no basis upon which it could have concluded that were other persons otherwise in the like position to Mr Zizza. As will be obvious from what I have said in the previous paragraph, I reject that argument as well.

I come finally to a number of other legal errors claimed by Mr Zizza to have been committed by the Tribunal, which claimed legal errors are said to have been manifested in certain conclusions expressed by the Tribunal in that part of its statement of findings and reasons which preceded its application of the Hunter Valley Developments principles. It may be that the best course in the circumstances is for me to begin to discuss those claimed legal errors by setting out the two paragraphs in the Tribunal's statement of findings and reasons which are said to have manifested them. They are as follows:

``The period from the notices of objection, 11 December 1989, until the date of notification of disallowance of those objections, 5 June 1992, is a period of approximately two and a half years. The Exhibits and evidence indicate that during that period, there were negotiations and discussions between the Applicant and his then accountants and the Respondent; the Exhibits indicate furthermore a lack of co- operation on the part of the Applicant in that he failed on various occasions to attend meetings which had been arranged between himself and officers of the Respondent. It seems clear that that period was one involving some degree of frustration for the Respondent. That period is no longer relevant except insofar as it indicates, as did his failure to file returns, a general disinclination on the part of the Applicant to comply with his taxation obligations.

...

In general terms, the Applicant can aptly be characterised as a person who pays little or no regard to his taxation obligations. His failure to render returns over a number of years is indicative of that fact; it is relevant also that in respect of all of the relevant years, and notwithstanding his admission that some taxes are due, he has never made any payments of any kind on account of his taxation obligations.''

As to the first of those two paragraphs, it was claimed by Mr Zizza in his written submissions before me that two conclusions in it exhibited legal error. The first was that Mr Zizza had been uncooperative with the Commissioner while the Commissioner had been considering his objections to the assessments (``conclusion 1''); the second was that Mr Zizza was generally disinclined to comply with his taxation obligations. It was submitted that those two conclusions had been used by the Tribunal in its application of both the first and the second of the Hunter Valley Developments principles (that is to say, first, the extent of the delay and the acceptability of the reason, if any, for it and, secondly, whether the applicant has allowed the decision-maker to believe that the matter has been finally concluded). When the matter came before me for oral hearing, Mr Zizza abandoned his claim that the second conclusion had amounted to legal error.

As to the second of those two paragraphs, it was claimed by Mr Zizza in his written submissions before me that two conclusions in it also exhibited legal error. The first was that Mr Zizza had never made any payments of any kind on account of his tax obligations (``conclusion 2''); the second was that Mr Zizza was a person who paid little or no regard to his taxation obligations (``conclusion 3''). It was submitted that those two conclusions had been used by the Tribunal in its application of the fifth of the Hunter Valley Developments principles (that is to say, the merits of the substantial application). When the matter came on before me for oral hearing, Mr Zizza did not, as he had in connection with what appears to me to be the materially identical conclusion in the first of the two paragraphs I am now discussing, abandon his claim that conclusion 3 had amounted to legal error.

It appears to me that I must therefore deal with claims of legal error in three conclusions by the Tribunal.

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ATC 4182

As to conclusion 1, Mr Zizza's attacked it two ways. His first attack on that conclusion was expressed, as usual, as being one of the Tribunal's having failed to take into account certain listed relevant factors, which so-called factors were actually items of evidentiary material from which the Tribunal might have reached a conclusion contrary to the one which it did reach on the question. Yet again, I conclude that such attack raises no question of law.

(I should, however, note that some of the so-called relevant factors in Mr Zizza's list in connection with his first attack on conclusion 1 were quite erroneous. It was said in that list that the only evidentiary material referring to Mr Zizza's failing to attend meetings with officers of the Commissioner was contained in the Commissioner's ``omnibus'' letter of 5 June 1992 and that Mr Zizza's solicitor had, in a letter which he wrote to the Commissioner on 20 December 1993, denied receiving the ``omnibus'' letter. In fact, a document prepared by officers of the Commissioner and entitled ``Supplementary Report'', which document, like the ``omnibus'' letter, was tendered before the Tribunal by Mr Zizza, referred to ``Mr Zizza's continual non-attendance at interviews''. Further Mr Zizza's solicitor's letter of 20 December 1993, far from denying receipt of the ``omnibus'' letter, expressly acknowledged receiving it. It said, ``Please be advised that only one unsigned letter was received with the 11 (eleven) formal notices of decision regarding objections to assessment for the years 30th June 1978 to 1988.'' The letter then went on to make the argument which I have already mentioned that the ``omnibus'' letter was merely a ``covering letter'' and therefore could not qualify as the ``attached explanation'' referred to in each of the eleven similar letters.)

Mr Zizza's second attack on conclusion 1 was, in effect, to submit that even if the Tribunal's conclusion was correct, Mr Zizza's uncooperativeness with the Commissioner was irrelevant to the Tribunal's task of deciding whether to grant Mr Zizza the extensions of time which he sought. I will return to that second attack below.

As to conclusion 2, Mr Zizza did not attack it on the basis that, in reaching it, the Tribunal had failed to take into account any relevant factors. His attack on it was limited to the submission that the fact of such non- payment was irrelevant to the Tribunal's task of deciding whether to grant Mr Zizza the extensions of time which he sought.

In truth, both conclusions 1 and 2 were used by the Tribunal only to found its conclusion 3. If conclusion 3 was relevant to the Tribunal's task of deciding whether to grant Mr Zizza the extensions of time which he sought, then Mr Zizza's attacks on conclusions 1 and 2 in that respect must also fail.

In spite of Mr Zizza's submissions as to the use to which the Tribunal put conclusion 3, an examination of that part of the Tribunal's statement of findings and reasons in which it applied the Hunter Valley Developments principles shows that the only Hunter Valley Developments principle in connection with which the Tribunal made use of conclusion 3 was that relating to delay and the acceptability of any explanation therefor and, even then, the Tribunal made use of the conclusion only in a very limited way.

That came about as follows: the Tribunal recognised, so far as the ``delay'' consideration was concerned, that one effect of the decision of a Full Court of this Court in A'Hearn's Case (par 17 above) was that the showing of an acceptable explanation for the delay in commencing proceedings was not an essential pre-condition to the grant of an extension of time in respect of those proceedings. Having acknowledged that, the Tribunal then said that whether there was an acceptable explanation for the delay in commencing proceedings was nevertheless a relevant consideration in the exercise of its discretion and, ``[g]iven that this case involves a delay of over five years and a taxpayer who does not appear to have ever taken his taxation obligations seriously, an adequate explanation of delay is in this case not a requirement that the Tribunal should lightly forgo''. Thus the only way in which the Tribunal used conclusion 3 was as a matter persuading it that, in Mr Zizza's case, it should give weight to the consideration relating to delay and to the acceptability of the explanation, if any, given therefor. Since the Tribunal could have given weight to that consideration even if it had not reached conclusion 3, I am unable to see how, when using it for that limited purpose, the Tribunal fell into error.

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ATC 4183

Having now dealt with all of the questions of law either arising or said to have arisen from the Tribunal's decision to refuse to grant to Mr Zizza the extensions of time which he sought, I order (as contemplated by subs 44(5) of the AAT Act) that the Tribunal's decision be affirmed. Mr Zizza must pay the Commissioner's costs of the proceeding.

THE COURT ORDERS THAT:

1. The Tribunal's decision be affirmed.

2. The Applicant pay the Respondent's costs of the proceeding.