Bazaniak v Commissioner of Taxation

[1999] FCA 817

FEDERAL COURT OF AUSTRALIA

Bazaniak v Commissioner of Taxation [1999] FCA 817

BAZANIAK v COMMISSIONER OF TAXATION

NG 1440 of 1998

SACKVILLE J
SYDNEY
10 JUNE 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1440 OF 1998

BETWEEN:	WIESLAWA BAZANIAK Applicant
AND:	COMMISSIONER OF TAXATION Respondent

JUDGE:	SACKVILLE J
DATE:	10 JUNE 1999
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

1. This is an application by Ms Bazaniak, who is the applicant in this Court.  She seeks to set aside a decision of the Small Taxation Claims Tribunal, which affirmed an objection decision made with respect to the 1995 tax year.  As the result of the objection decision, an increase in Ms Bazaniak’s taxable income by the sum of $41,732.00 was reduced to an increase of $7,866.00, producing a taxable income for the year of $30,494.  In addition to increasing Ms Bazaniak’s taxable income by $7,866.00, the objection decision imposed a tax penalty of $1,844.14 (assessed on the basis of seventy-five per cent of the additional tax due) plus interest.

2. The proceedings instituted by Ms Bazaniak are by way of appeal pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). The appeal, which invokes the original jurisdiction of the Court, is set down for hearing next week, on 18 June 1999. Ms Bazaniak seeks an adjournment of the hearing date, essentially because she wishes to have the opportunity of obtaining legal representation to assist her. She relies on an affidavit which explains that, in addition to having certain health difficulties, she has tried, in recent times at least, to obtain legal assistance, thus far without success.

3. Mr Young, who appears for the Commissioner, has pointed out that this case has been pending in the Court for six months and that Ms Bazaniak was notified on 22 April 1999 of the hearing date, which at that time was approximately two months ahead.  He also points out that there have been three direction hearings.  Ms Bazaniak appeared at two of them.  On the first occasion she was unrepresented; on the second she was, however, represented by a solicitor.  That solicitor has since withdrawn.  The affidavit evidence suggests only that Ms Bazaniak has sought legal help over the last month or so.  It is not clear why assistance has not been sought earlier.

4. Mr Young also points out that Ms Bazaniak has filed detailed written submissions.  The Commissioner, through Mr Young, says that the issues of law she intends to raise have been well identified in those submissions and the Commissioner is able to deal with them.  Indeed, it is clear that the submissions have been framed by someone who has knowledge of the relevant areas of law.

5. In my view, the matter ought not to be adjourned.  I fully understand and sympathise with Ms Bazaniak’s desire to obtain legal representation.  If there were a clear indication that legal representation was likely to be available, for example through one of the legal aid schemes, I would have considerable sympathy with her application.  There is no evidence, however, that any such representation is likely to eventuate.  I take into account that, as Mr Young has pointed out, detailed submissions have been provided by the applicant.  It should be possible to identify and deal with the questions of law that are said to arise in the proceedings.

6. While I appreciate the health considerations that Ms Bazaniak has pointed to, there does not seem to be any indication that the situation is likely to change for the better if the case were to be postponed.  It may well be that from Ms Bazaniak’s point of view it is better for this case to be dealt with sooner rather than later.  In any event, taking into account the importance of adhering to dates that have been set, unless there is very good reason not to do so, and taking into account the particular circumstances of this case, I think the appropriate course is that the hearing proceed on Friday of next week, as scheduled.

7. The formal order I make is that I dismiss the motion to vacate the hearing date.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.

Associate:

Dated:             10 June 1999

Counsel for the Applicant:	Unrepresented
Counsel for the Respondent:	Mr I S Young
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	10 June 1999
Date of Judgment:	10 June 1999