A Stewart & Co Pty Limited and Anthony Stewart and Commissioner of Taxation

[2012] AATA 625

[2012] AATA 625 

Division

TAXATION APPEALS DIVISION

File Number(s)

2012/0285-0288 and

2012/0313-0321

Re

A Stewart & Co Pty Limited and

Anthony Stewart

APPLICANTS

And

Commissioner of Taxation

RESPONDENT

DECISION

Tribunal	The Hon Brian Tamberlin, QC, Deputy President
Date	18 September 2012
Place	Sydney

The Tribunal orders that:

(a)the proceedings be adjourned and stayed pending determination of the Federal Court proceedings;

(b)a further directions hearing be listed on 7 December 2012 at 9.30 am.

.............................[Sgd]........................................

The Hon Brian Tamberlin, QC, Deputy President

Catchwords

PRACTICE AND PROCEDURE – application for stay and adjournment of proceedings – application for production of further material – proceedings stood over.

Legislation

Judiciary Act 1903 s 39B
Administrative Appeals Tribunal Act 1975 ss 2A, 37

REASONS FOR DECISION

The Hon Brian Tamberlin, QC, Deputy President

1. These reasons concern an application for a stay and adjournment of proceedings in the Tribunal pending the determination of an application presently proceeding in the Federal Court of Australia filed on 14 June 2012 pursuant to s 39B of the Judiciary Act 1903, which includes challenging the validity of assessments issued by the Respondent to the Applicants in these proceedings.

2. A second application has been made for the production of further material pursuant to s 37(2) of the Administrative Appeals Tribunal Act 1975 (AAT Act) consisting of transcripts of interviewees for the Australian Crime Commission (ACC) and production of some redacted material provided together with additional transcripts of evidence. The Applicants have referred to various authorities concerning provision of information as to the factual background of particulars and statements.

3. The Respondent has filed an affidavit by Barbara Zakos of 21 August 2012 referring to the ACC examination transcripts in the s 37 documents provided and describing the extent of information already given to the Applicants. Ms Zakos also refers to the position of the Respondent in relation to documents relating to the “fraud or evasion” dispute and the penalties dispute.

4. After hearing submissions from the parties, and considering written submissions filed by them, I have come to the conclusion that the applications before the Tribunal should be stayed and adjourned, without further directions, pending the determination as to the validity of the assessments, which have been challenged on several grounds before the Federal Court of Australia. I note that the  Respondent does not make any submission as to the merits of the Applicant’s case in the Federal Court. I therefore proceed on the basis that it has not been shown to be vexatious, frivolous or without some arguable substance.

5. The Tribunal is required to proceed with expedition and with proper consideration of the matters before it, in accordance with s 2A of the AAT Act, which provides that the Tribunal is to pursue the objective of providing a mechanism of review which is fair, just, economical, informal and quick.

6. The Respondent alternatively contends that proceedings should continue in the Tribunal pending the determination in the Federal Court in order to prevent the compounding of delays that will occur if the present proceedings are left in abeyance pending the decision of the Federal Court.  It is submitted that the Applicants should file at this stage a Statement of Facts, Issues and Contentions which could be amended at a later date if necessary, and that that the Respondent could proceed to prepare and file material and responses to address the matters raised.  There is the possibility that the determination by the Federal Court, as to the validity, maybe appealed and this would further delay the present proceedings. 

7. This is a matter with a long history and there is a significant dispute as to the adequacy of material produced.  The Applicants contend that they will not be in a position to properly formulate their Statement of Facts, Issues and Contentions or progress the matter until further material is produced.

8. The Applicants also say that time, delay, expense and complexity expended in  progressing the present matter will be pointless if it is determined that the assessments in respect of which the proceeding is brought are declared invalid. Against this I have weighed what the Respondent describes as “the cumulative delay of multiple proceedings”.

9. I am informed that on the last mention before Jagot J of the Federal Court on 16 August 2012, the parties were directed to provide draft Notices to Admit with the common view of accelerating those proceedings.

10. On the hearing before me it was stated that the Applicants are prepared to fully co-operate with a view to obtaining an early date for hearing for the Federal Court proceedings.

11. Having regard to the foregoing, I decide that it is not necessary or appropriate to proceed with any determination of the dispute between the parties as to the provision of further documents under s 37 of the AAT Act. This may prove to be unnecessary and wasteful in the event that a determination is made favourably to the Applicants in the Federal Court proceedings.

12. Accordingly, I stay the proceedings in the Tribunal pending a determination of the subject matter of the Federal Court proceedings.  The matter will accordingly be stood over for further directions on 7 December 2012 at 9.30 am.

13.       I certify that the preceding 12 (twelve) paragraphs are a true copy of the reasons for the decision herein of The Hon Brian Tamberlin, QC, Deputy President.

......................[Sgd].........................................

Associate

Dated 18 September 2012

Date of hearing	22 August 2012
Solicitors for the Applicant	Robinson Legal
Counsel for the Respondent	Mr D J Fagan SC