Milton Brown (t/a Karnack Hardware) v The Commissioner General (formerly The Commissioner of Taxpayer Appeals)
| Jurisdiction | Jamaica |
| Judge | Rattray, J. |
| Judgment Date | 18 May 2018 |
| Neutral Citation | [2018] JMRC 1 |
| Court | Supreme Court (Jamaica) |
| Date | 18 May 2018 |
| Docket Number | REVENUE COURT APPEAL NO.3 OF 2015 |
[2018] JMRC 1
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN THE REVENUE COURT
Rattray, J.
REVENUE COURT APPEAL NO.3 OF 2015
(formerly The Commissioner of Taxpayer Appeals)
Ms. Karen O. Russell for the Applicant
Mrs. Cecelia Chapman Daley and Ms. Maxine Johnson for the Respondent
Richards v. Appleby [2016] J.M.C.A. App. 20
Commissioner of Lands v. Homeway Foods Ltd. and Muir [2016] J.M.C.A. Civ. 21
Beecham v. Fontana Montego Bay Ltd. t/a Fontana Pharmacy [2014] J.M.C.A. Civ. 199
Haddad v. Silvera SCCA No. 31/2003 .
Revenue Appeal-Time within which to bring Appeal in Revenue Court expired — Application for extension of time to file Appeal refused — Application for leave to Appeal to the Court of Appeal — Principles to be considered in granting permission to Appeal to the Court of Appeal.
On the 23 rd June, 2015, there were two separate Applications filed on behalf of the Applicant, Mr. Milton Brown, before the Revenue Court in respect of Revenue Court Appeal Nos. 2 and 3 of 2015. Both Applications sought an extension of time within which to Appeal to the Revenue Court, the decisions of the Respondent, made on the 30 th December, 2011, which imposed additional Income Tax in the sum of $9,612,247.44 and General Consumption Tax in the sum of $7,012,556.48 on the Applicant for the year 2007. After hearing the submissions of the parties, and considering the evidence and the Authorities cited, I orally refused both Applications.
Subsequent to my oral ruling on the 23 rd June, 2015, I set out my reasons for refusing the Applications in writing in these matters. For convenience however, only one Judgment was delivered with respect to the two Applications, in light of the factual similarity of the evidence in both matters. Further, only one set of submissions had been advanced by the Applicants and no step had been taken, nor any Application made for the consolidation of both Applications for Extension of Time within which to Appeal to the Revenue Court. No objection was raised by Counsel for either side as to this approach taken by the Court.
In the instant Application filed on the 1 st July, 2015, the Applicant is now seeking, Leave to Appeal to the Court of Appeal, the decision made on the 23 rd June, 2015, in respect of Revenue Court Appeal No. 3. It is however, my understanding that although a separate Application was not filed in respect of Revenue Court Appeal No. 2, the ruling herein is applicable to both Revenue Court Appeal Nos. 2 and 3 of 2015.
The grounds relied on by the Applicant are outlined as follows:
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a) Counsel's failure to make the Application at the time the Order was granted;
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b) The grounds set out in the draft Notice of Appeal annexed hereto which have a realistic chance of success;
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c) The learned Judge erred in law in dismissing the Applicant's Application;
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d) The Application had been promptly made;
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e) The Applicant would be without redress and/or remedy if leave to Appeal is not granted;
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f) The Honourable Court has the jurisdiction to extend time to Appeal.
Counsel Ms. Russell for the Applicant, at the outset submitted that in considering an Application for Extension of Time, this Court was bound to consider the factors set out in the Court of Appeal decision of Leymon Strachan v The Gleaner Company Limited and Dudley Stokes, Motion No 12/1999, a judgment delivered on the 6th December, 1999. There, Panton JA (as he then was), declared the factors for consideration to include the following:-
“(1) Rules of court providing a time-table for the conduct of litigation, must, prima facie, be obeyed.
(2) Where there has been a non-compliance with a time table, the Court has a discretion to extend time.
(3) In exercising its discretion, the Court will consider—
(i) the length of the delay;
(ii) the reasons for the delay;
(iii) whether there is an arguable case for an appeal and;
(iv) the degree of prejudice to the other parties if time is extended.
(4) Notwithstanding the absence of a good reason for delay, the Court is not bound to reject an application for an extension of time, as the overriding principle is that justice has to be done.”
She also relied on the Court of Appeal decisions of The Commissioner of Lands v Homeway Foods Limited and Stephanie Muir [2016] JMCA Civ. 21, and Paulette Richards v Orville Appleby [2016] JMCA App 20, which she submitted had applied the aforementioned factors.
She further submitted that, although the delay in making the Application to Extend Time to File Appeal may have been inordinate, the Court ought not to stop at that point, but should go on to consider the other factors outlined in the Leymon Strachan decision. In support of this argument, she referred to the decision of Paulette Richards v Orville Appleby, where at paragraph 20 of his Judgment, F. Williams JA posited:-
“To my mind, this period of delay might fairly be regarded as inordinate. However, that, by itself, is insufficient to warrant a dismissal of the appeal; and so it is necessary to discuss the other factors outlined in the Leymon Strachan case.”
The Applicant's Counsel argued that the delay in this matter without more, was not determinative in deciding whether the extension of time should be allowed. She further argued, that the sole reason for refusing to grant the extension of time was the delay, as in her view, the decision of the Court seemed to place great emphasis on the delay of her client. Counsel then referred to the decision of The Commissioner of Lands v Homeway Foods Limited and Stephanie Muir, where at paragraph 69 of her Judgment, McDonald-Bishop JA (Ag) (as she then was) opined that:-
“The delay on the part of the appellant to comply with the relevant rules and the case management orders of the court as well as to apply for an extension of time to do so was inordinate in all the special circumstances of this case. The length of the delay is a consideration that strongly militates against the appellant's application for extension of time and variation of the case management order. However, this finding, while being accorded significant weight, is not taken as being determinative of the ultimate question whether the appeal should be allowed to proceed. Another important issue for consideration is whether the appellant has a good explanation or excuse for the delay.”
Ms. Russell also advanced the argument that the Court failed to consider whether her client had a good explanation for the delay. She referred to paragraphs 46 to 51 of the Affidavit of Milton Brown in Support of Notice of Application to Extend Time to File Appeal, filed on the 21 st January, 2015, which she submitted gave adequate reasons for the delay. Those paragraphs read as follows:-
“46. That based on the apparent failure of my Attorney-at-Law and the TAD to arrive at any meaningful settlement or decision as to the way forward and/or the issues surrounding my appeal my Accountant once again intervened by seeking the assistance of the Minister of Finance by way of letter dated 31 st day of July, 2013 which was delivered on the 8 th day of August, 2013…
47. That during the intervening period from the receipt of the Notice of Decision and while we awaited a response from the Minister of Finance I was issued with summonses to appear before the Resident Magistrate Court for the Parish of Saint Ann holden at Saint Ann's Bay on all these unresolved matters.
48. That my Accountant wrote another letter to the Minister of Finance dated the 16 th day of September 2013 as there was no response to the first…
49. That by letter dated August 19, 2014 the Minister of Finance finally responded to my Accountants and advised that I take the matter before this Honourable Court….
50. That since I have always maintained my intention to defend, appeal and ultimately prosecute the decision as contained in the Notice of Decision of the TAD I proceeded to my Accountant who advised me to obtain the services of an Attorney-at-Law who has some experience in tax matters as by this time my previously instructed Attorney-at-Law had succumbed to her illness during the intervening periods.
51. That I had challenges putting together the relevant documents to instruct my Attorney-at-Law of choice and further my Accountant became somewhat unwilling to assist me with his working papers and correspondence as he maintained that I instruct an Attorney-at-Law of his choice.”
Counsel Ms. Russell went on to contend that even if the Court does not consider the reasons for the delay to be good ones, the justice of the case should be examined. She then referred the Court to paragraph 25 of the Judgment of F. Williams JA in the Paulette Richards v Orville Appleby case, to support her submission, where the Learned Judge of Appeal opined that:-
“In any event, however, even if I should eventually be found to be incorrect in this conclusion, it is to be remembered that, at the end of the day, what is required on the basis of the principles outlined in the Leymon Strachan case is that the justice of the case be examined even where the explanation for the delay may not be a good one.”
Similarly, she relied on paragraph 84 of the Judgment of McDonald-Bishop JA (Ag) in The Commissioner of Lands v Homeway Foods Limited and Stephanie Muir, where the Learned Judge of Appeal expressly stated that:-
“I must point out, however, that even though the excuse for the lengthy delay is not a good one, the authorities have said that the court is not bound to refuse the application. It is but one of the factors to be taken into account in weighing what the interests of justice require. Therefore, my finding that there is no good explanation for...
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