Dunn, Gregory v Commissioner of Taxation

[2011] AATA 880

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(Decision by: Justice Downes, P)

Gregory Dunn
vCommissioner of Taxation

Tribunal:

Member:
Justice Downes, President

Legislative References:
Administrative Appeals Tribunal Act 1975 - 35A

Hearing date: 9 December 2011
Decision date: 13 December 2011

Sydney

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Decision by:
Justice Downes, P

1. To my mind, this matter has had a most unfortunate history. Matters in the Tribunal are required by the Parliament to be dealt with quickly. No one could suggest that the pace at which the preparation of the matters before me this morning have been proceeding was quick. The fact that the matter has taken a leisurely pace in the past is not a reason why that state of affairs should continue. I am conscious of the fact, however, that there has been significant delay on the part of the respondent, the Commissioner of Taxation, in filing the evidence on which the Commissioner relies in one of the matters and to some extent fairness might be thought to suggest that if one party is given a long period of time, then so should the other.

2. However, if I were to adopt that approach in this case, the further preparation of the matters for hearing would be, to my mind, delayed beyond what is, on any view, reasonable. One bears in mind that complex litigation, even very complex litigation, particularly, for example, litigation involving takeovers and the like, has, in the past, been prepared very quickly. The fact that it will involve a time in preparation is not, unfortunately, a reason why months should be given for preparation or the taking of various steps in proceedings.

3. There are before me, broadly speaking, two matters at present. In the first matter, which I will call the 2010 matter, both the applicant and the respondent have filed their evidence and there remains really only the requirement for evidence in reply. The matter will then be ready to be fixed for hearing. In the second matter, which I will call the 2011 matter, the proceedings have only just reached the stage in which there are statements of facts, issues and contentions filed by both sides. I must say that these statements of facts, issues and contentions do not seem to me to be lengthy or complex documents, although their filing engendered a delay of three months. So the steps that have to be taken to get these two matters ready for hearing, and I do think that they should be heard together, is for the filing of affidavits in reply in the 2010 matter, and in the 2011 matter affidavits by the taxpayer, to be followed by evidence from the Commissioner and then, if there is evidence from the Commissioner, evidence in reply.

4. It has been urged upon me for the applicant that to complete all these matters the applicant should be given until, effectively, the middle of June. Evidence has been filed and submissions have been put to me, showing how this time will be used up. I have to say, however, that it is, of course, a truism to say that it is not going to take all of that time to prepare the documents. The substantial part of that time will be likely to be occupied by the parties, including the applicant, Mr Dunn, in Thailand, attending to other affairs. I consider, however, that if the applicant wishes to have the matter determined by the Tribunal, as he undoubtedly does, that it will need to be given some greater and more detailed and continuing attention to ensure that the obligation of the Tribunal to deal with matters quickly is adhered to as nearly as possible.

5. I accordingly propose to direct the applicant to file any further evidence on which it seeks to rely, whether by way of statement, document or any other material in the 2010 matter, on or before 2 April 2012. I direct the applicant in the 2011 matter to file its evidence, including the same matters I have specified above, by the same time. I do not propose to make any further directions relating to the future preparation of the matters for hearing, until after 2 April, when precisely what material is on will be known and the Commissioner will be able to inform me, and I will expect the Commissioner to be prepared to indicate, what, in terms of precision, further evidence, if any, the Commissioner wishes to file. I propose to make simply, at this stage, the direction I have indicated relating to the filing of evidence in the 2010 and 2011 matters, and stand the matter over for mention after that date.

6. There are two other matters which are before me. The first is a foreshadowed application under section 35A of the Administrative Appeals Tribunal Act 1975 (Cth) by Mr Dunn that his evidence be given by video link. The parties appear to agree that it is not appropriate at this moment to determine that matter and I think that the determination of that application should wait, at least until the proposed directions hearing after 2 April 2012. That seems to accord with the position taken both by the Commissioner and the applicant.

7. The final matter is this: that a number of witness statements and documents have been filed in the Tribunal in default of time limits given in the directions relating to the filing of those documents. The question arises, in consequence, whether the documents will be able to be used in the proceedings without the leave of the Tribunal. It is, however, now a long time prior to the date at which any hearing is going to be fixed, and in those circumstances I see no reason why leave should not be given to permit the witness statements to be relied upon, and the further documents to be relied upon. Having said that, of course, I am not suggesting that questions of admissibility or discretion relating to the reading of the witness statements have been foreclosed. It will be necessary, as it is in all matters in the Tribunal, to satisfy the Tribunal hearing the matter that the documents should be allowed to be relied upon. I am merely saying that the filing of the documents out of time will not alone be a reason why they cannot be relied upon.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for the decision herein of the Honourable Justice Downes, President.

Date of hearing: 9 December 2011

Date final submissions received: 9 December 2011

Counsel for the Applicant: Mr J C Vaughan

Solicitors for the Applicant: DLA Piper Australia

Counsel for the Respondent: Ms L Price

Solicitors for the Respondent: Australian Government Solicitor