SPIRAKOS v DFC of T (No 2)

Sundberg J

Marshall J
Merkel J

Full Federal Court


Judgment date: 3 November 2005

Sundberg, Marshall and Merkel JJ

1. The Australian Taxation Office issued Mr Spirakos with default assessments for the years 1995 and 1996 in June 1998. He filed an objection to these assessments in September 1998. The respondent disallowed them. In January 2000, the respondent obtained judgment against Mr Spirakos in the County Court of Victoria in respect of these assessments for the sum of $132,978.06 plus interest and costs. His failure to make that payment, resulted in Mr Spirakos being made bankrupt on 31 May 2001. In February 2005, Mr Spirakos lodged an application with the Administrative Appeals Tribunal challenging the respondent's decision to disallow his objection to the assessments. The Tribunal determined that it did not have jurisdiction to hear the application on the basis that, as a bankrupt, Mr Spirakos did not have standing to bring the application. Mr Spirakos then filed an out of time application in the Court to appeal from the Tribunal's decision. On 27 July 2005, the primary judge determined that granting leave for an extension of time within which to file an appeal would be futile. He refused leave. By an amended notice of appeal filed on 31 August 2005 Mr Spirakos now seeks leave to appeal from the judgment of the primary judge.

2. Leave to appeal is required under s 24(1A) of the Federal Court of Australia Act 1976 (Cth) as the judgment of the primary judge refusing an extension of time in which to appeal from the decision of the Tribunal is of an interlocutory nature:
Vranic v Commissioner of Taxation (2002) 67 ALD 798. Whether or not leave ought be granted would ordinarily depend on the considerations set out in
Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397.

3. The respondent did not oppose the granting of leave to appeal. In these circumstances we grant leave, without any consideration of the merits of the application for leave.

4. Mr Spirakos filed his appeal out of time, having failed to comply with the 7 day time limit specified by O 52 r 10(2A)(b) of the Rules of the Court regarding an application for leave to appeal from an interlocutory judgment. However, the respondent did not oppose Mr Spirakos being granted this extension of time to file his application for leave to appeal. We grant him the necessary extension.

5. Mr Spirakos appeared for himself before the Full Court and made his submissions through an interpreter. In his Notice of Appeal dated 16 August 2005, by which he also sought leave to appeal, Mr Spirakos makes a number of accusations against "government members" alleging embezzlement and bribery. Mr Spirakos also refers to "misleading information on government documents". In his affidavit filed in support of his Notice of Appeal, he states that he is appealing on the basis that "proofs of evidence can be shown to understand what has taken place, not what the government is saying".

6. Mr Spirakos did not identify any error in the reasoning of the primary judge. Rather, as before the primary judge, Mr Spirakos took issue with the validity of the original assessments.

7. The primary judge refused to grant Mr Spirakos an extension of time within which to appeal from the decision of the Tribunal, relying on
Robertson v Commissioner of Taxation (2004) 137 FCR 513 for the proposition that, as a bankrupt, Mr Spirakos had

ATC 4955

no standing to challenge the disallowance of the objections to the assessments. This proposition is supported by a considerable weight of authority including the judgment of the Full Court in
McCallum v Commissioner of Taxation (1997) 75 FCR 458 which applied the High Court's judgment in
Cummings v Claremont Petroleum NL (1996) 185 CLR 124.

8. The Tribunal correctly determined that Mr Spirakos lacked standing to challenge the disallowance of the objections to his tax assessments. Mr Spirakos did not put forward anything that reveals any error of law in the reasons for decision of the Tribunal, or the reasons for judgment below.

9. For the above reasons we consider that the appeal should be dismissed with costs.


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