Bazaniak v Commissioner of Taxation

[1999] FCA 1724

FEDERAL COURT OF AUSTRALIA

Bazaniak v Commissioner of Taxation [1999] FCA 1724

WIESLAWA BAZANIAK v COMMISSIONER OF TAXATION

N 692 of 1999

RYAN J
SYDNEY
2 DECEMBER 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALESDISTRICT REGISTRY	N 692 OF 1999

BETWEEN:	WIESLAWA BAZANIAK Applicant
AND:	COMMISSIONER OF TAXATION Respondent
JUDGE:	RYAN J
DATE OF ORDER:	2 DECEMBER 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The hearing of the appeal which has been listed for 3 December 1999 be vacated;

2.The appeal be listed at the next Full Court sittings in Sydney on a date to be fixed by the Listing Master, and advised to the parties.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALESDISTRICT REGISTRY	N 692 OF 1999

BETWEEN:	WIESLAWA BAZANIAK Applicant
AND:	COMMISSIONER OF TAXATION Respondent

JUDGE:	RYAN J
DATE:	2 DECEMBER 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. There is before the Court a notice of motion by the appellant seeking an order that the hearing of her appeal which has been fixed to take place before a Full Court of this Court tomorrow, 3 December 1999, be vacated.  When the appeal was called over, his Honour, Justice Sackville, made orders which, inter alia, provided:

   "(1)That the appellant file and serve her written submissions not later than ten days in advance of the date fixed for the hearing of the appeal;

   (2)That the respondent file and serve his submissions five days in advance of the hearing of the appeal."

2. In the result, it seems that the appellant's written submissions, which have been described by Counsel for the respondent as detailed, were filed and served on Tuesday, 23 November 1999.

3. The respondent's submissions in reply were not filed until yesterday, 1 December 1999, on which date those submissions were served on the appellant by courier, I have been informed, at 10.00 am.  I have been told by the appellant that they were not received by her until she returned home from work later in the day.  Of course, the appellant's motion had been taken out before service of the respondent's written submissions.  The appellant deposes in para 4 of her affidavit in support of the motion that as of 30 November 1999, the respondent had not filed and served their written submissions.

4. The respondent has also deposed in paragraphs 5 and 6 of her affidavit, and I quote:

   "5.I am severely prejudiced by the respondent's non-compliance with the court order.

   6.I need interpreters to read and understand the court documents.  As I am unable to pay for professional services I must accept all the assistance, legal, interpreter et cetera, on terms dictated by them, meaning that I am the last in the queue.  Adequate time is therefore of the essence to me."

5. The appellant has also annexed to her affidavit two medical certificates, one by Dr Berkowski, a general practitioner, which is dated 6 February, 1997, and attests to the fact that the appellant was then suffering from a post-traumatic stress disorder.  A more recent certificate by Dr Howard Napper, a consultant psychiatrist, is dated 25 November, 1999, and certifies that that practitioner is treating the appellant for an anxiety condition, and it concludes by expressing the opinion that Ms Bazaniak is "medically unfit to proceed with her testimony".  That certificate of course was furnished before there had been any failure by the respondent to comply with the order for filing and service of written submissions.

6. In opposing the motion to vacate the hearing of the appeal, Mr Young of Counsel for the respondent has instanced the fact that the applicant's written submissions are wide ranging and include allegations of bias and bad faith on which it was necessary for Counsel to obtain instructions before preparing the Commissioner's written submissions in response.  It was also pointed out that the applicant bears the onus of demonstrating error in the judgment below.  No Notice of Contention has been filed on behalf of the Commissioner so that the applicant having carriage of the appeal could be presumed to be well acquainted with the issues raised by it.

7. Ordinarily, as I submitted in the course of discussion with Counsel, those would be powerful considerations influencing me to refuse the application to vacate the hearing of the appeal.  In the ordinary case where the appellant was represented by Counsel, I consider that the delay which has occurred in the filing of the Commissioner's submissions in reply would not unduly inhibit the preparation of the appellant's case for presentation on the hearing of the appeal tomorrow.  However, the appellant is representing herself on the hearing of this appeal.

8. She has deposed in effect that she is reliant on others for assistance in a translation of the Commissioner's submissions, and for legal assistance in the preparation of her argument for presentation on the hearing of the appeal. 

9. Having heard the appellant this morning, I accept the veracity of those submissions, and I consider that she would be disadvantaged if she were required, with effectively only one clear days access to the Commissioner's submissions, to present her appeal orally tomorrow. It is true, as Mr Young of Counsel pointed out, that the Court has made available out of its limited resources three judges for the hearing of this appeal, but that has to be balanced against the need to give an unrepresented appellant a full and fair opportunity of saying everything that can relevantly and appropriately be said on the hearing of her appeal, and  in undertaking that balancing exercise, I have been led to conclude that the balance is in favour of vacating the appeal.

10. It should of course be understood that since the orders made by Justice Sackville for the filing and service of written submissions have now been complied with, although not in time, there will be no justification in relation to the provision of those written submissions for any further delay in the hearing of this appeal when the matter is relisted. 

11. Accordingly, I propose to order that the hearing of the appeal which was listed for 3 December 1999 be vacated, the appeal be listed at the next Full Court sittings in Sydney on a date to be fixed by the Listing Master, and advised to the parties.  I shall make no order as to the costs of the motion.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Associate:

Dated:             2 December 1999

Counsel for the Applicant:	The applicant appeared in person.
Counsel for the Respondent:	Mr I Young
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	2 December 1999
Date of Judgment:	2 December 1999