Agius v Commissioner of Taxation
[2015] FCA 64
•10 February 2015
FEDERAL COURT OF AUSTRALIA
Agius v Commissioner of Taxation [2015] FCA 64
Citation: Agius v Commissioner of Taxation [2015] FCA 64 Appeal from: Agius and Commissioner of Taxation [2014] AATA 854 Parties: ROBERT AGIUS v COMMISSIONER OF TAXATION File number(s): NSD 1327 of 2014 Judge(s): GRIFFITHS J Date of judgment: 10 February 2015 Date of hearing: 10 February 2015 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 9 Counsel for the Applicant: C Catt Solicitor for the Applicant: Butlers Business Lawyers Pty Limited Counsel for the Respondent: A O’Brien Solicitor for the Respondent: Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1327 of 2014
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: ROBERT AGIUS
ApplicantAND: COMMISSIONER OF TAXATION
Respondent
JUDGE:
GRIFFITHS J
DATE OF ORDER:
10 FEBRUARY 2015
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.By 4.00 pm on 2 March 2015, the applicant must file and serve on the respondent his outline of submissions and any evidence on which he intends to rely.
2.By 4.00 pm on 23 March 2015, the respondent must file and serve on the applicant his outline of submissions and any evidence on which he intends to rely.
3.By 4.00 pm on 30 March 2015, the applicant must file and serve on the respondent any submissions and/or evidence in reply.
4.Outlines of submissions are not to exceed 10 pages in length, including any annexures, and be easily legible using a font size of at least 12 points and one and a half line spacing throughout, including in any footnotes and annexures. Italics or underlining must be used for legislation and case citations and boldface or italics may be used for occasional emphasis.
5.By 20 April 2015, the respondent is to file and serve a Court Book containing the Core Set of Standard Items indexed and prepared in accordance with Rules 33.23 and 33.26 for Tribunal Appeals.
6.The matter is listed for hearing for no more than one day on 28 April 2015.
7.Each party file and serve a list of authorities and legislation in accordance with Practice Note CM2.
8.The respondent is to send a copy of these orders and the ex tempore reasons by express post by no later than 5.00 pm 11 February 2015 to the applicant at Cooma Correctional Centre.
9.Liberty to relist the matter on 2 days’ notice.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1327 of 2014
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: ROBERT AGIUS
ApplicantAND: COMMISSIONER OF TAXATION
Respondent
JUDGE:
GRIFFITHS J
DATE:
10 FEBRUARY 2015
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This matter came before me for first directions this morning. When the matter was first called the applicant was represented by counsel, Mr Catt, who also had an instructing solicitor present. The respondent was represented by Mr O’Brien, who also had with him an instructing solicitor.
The respondent had recently provided to my chambers a copy of some proposed orders. The orders imposed certain obligations on the applicant to take responsibility for preparing appeal books in the form of Parts A, B, and C which appear in the Court’s relevant practice notes.
Mr Catt indicated that the applicant is currently in prison in the Cooma Correctional Centre and that he has unsuccessfully applied for legal aid. Mr Catt indicated that a request for a statement of reasons in respect of that decision has been made and that there are instructions apparently to challenge the refusal of legal aid in the Supreme Court of New South Wales. He asked that the matter effectively be stood over for a period of six months to enable these matters to occur and to establish if the applicant is successful in obtaining legal aid.
I expressed concern at the prospect of a six month delay before any further step is taken in this matter. I suggested that the respondent should give consideration to taking responsibility for preparing the relevant materials, and I adjourned the matter to enable instructions to be obtained on that matter.
When the matter resumed at 2.15 pm this afternoon, Mr Catt announced that he was no longer retained as counsel by the applicant. His instructing solicitor indicated that in the short time available, and having regard to Mr Agius’ circumstances, he was unclear as to whether he was still retained. Mr O’Brien indicated that the respondent was not prepared to bear the costs of preparing the relevant materials and the responsibility should rest with the applicant as is the normal course. In particular, Mr O’Brien emphasised the expense to which the Commissioner had already been put in the conduct of lengthy proceedings in the Tribunal below.
I then suggested that there might be scope for the matter to proceed in a different fashion. I handed to Mr O’Brien a copy of some proposed orders which sought to have preparation of the appeal focus on the existing notice of appeal and the nature of the questions of law and grounds of appeal raised in that document. In part, it appeared to me, having regard to those materials, that it was not necessary for all the T documents to form part of the Court's record.
There are two grounds of appeal which appear on their face to require some evidence to be placed before the Court, presumably evidence which was before the Tribunal. It is the grounds of appeal relating to a claim that there was no evidence to support certain findings of fact and that certain findings of fact were not open to be made on the evidence. The other grounds raise issues such as whether or not the Tribunal applied the wrong legal test. It appears no evidence is necessary to make good those claims and that they could be dealt with adequately by outlines of written submissions and reference to those parts of the Tribunal’s reasons for decision which, it is said, reveal such legal errors.
After taking instructions on these matters, Mr O’Brien indicated that the Commissioner was prepared to take responsibility for preparing a Core Set of Standard Items, which is one of the orders I will make.
For all those reasons, I propose to make orders in accordance with the short minutes of order which I asked Mr O’Brien to consider, and I will also order that the respondent send a copy of these orders and a copy of these ex tempore reasons, by express post by no later than 5.00 pm on 11 February 2015 to the applicant at the Cooma Correctional Centre.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths. Associate:
Dated: 10 February 2015
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