Commissioner of Taxation v Osborne, K

[1990] FCA 145

JUDGMENT No. ! f.5 / 7.0 .......

IN THE FEDERAL COURT OF AUSl'I?ALIA	1	QLD G14 of 1990
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	1

, 1

i

!

BETWEEN: COMMISSIONER OF TAXATION

Applicant

I AND: KENT OSBORNE

Respondent

MINUTES OF ORDER

JUDGE MAKING ORDER:	PINCUS J.
DATE OF ORDER:	28 MARCH 1990
WHERE MADE:	BRISBANE
THE COURT ORDERS THAT:

1.     on or before 9 April 1990 the applicant file and serve an affidavit or affidavits succinctly stating the facts, with respect to the supplementary notice of appeal only;

2.     any affidavit in reply on behalf of the respondent is to be filed and served on or before 16 'April 1990;

3. apart from the subject matter dealt with by the supplementary notice of appeal, the proceedings shall be determined on the basis of the documents forwarded to this Court with the Administrative Appeals Tribunal letter of 26 February 1990;

the Federal Court Rules.

4.   the appeal papers consist of the documents just

mentioned plus the notice of appeal, supplementary , .

notice of appeal and affidavits filed with respect to the point referred to in the supplementary notice of appeal.

-

Settlement and entry of orders is dealt with

I

IN THE FEDERAL COURT OF AUSTRALIA	1	QZD G14 of 1990
QUEENSLAND DISTRICT REGISTRY	1
GENERAL DIVISION	1

I

BETWEEN: COMMISSIONER OF TAXATION

Applicant

AND: KENT OSBORNE

Respondent

PINCUS J. 28 MARCH 1990

REASONS FOR JUDGMENT

This is a directions hearing in a Full Court matter. The matter was argued this morning by Mr Casey and Mr Sheehan, and I adjourned it to this afternoon to have a look at the papers. I will direct that the remarks I am about to make be transcribed and placed on the file.

The case is an appeal from the Administrative Appeals
Tribunal under 6 . 4 4 of the Administrative Appeals Tribunal Act

1975; the applicant seeks to challenge a decision of the

tribunal given in December 1989 by a Deputy President. The decision was to allow an objection to an income tax assessment.

The reasons for the decision commence with the

following remarks:

"It is unfortunate that the Tribunal haa no shorthand cover of the hearing. I accept full responsibility for this. On looking through the papers it did not appear to me to be a case, given the financial restraints placed upon the Tribunal, which would justify the expenditure on court reporters. As it happened, an important question of mixed law and fact has been raised which may well persuade the respondent to take the matter further."

The reasons go on to say that the facts are not in dispute, and they give an account of the facts. That the applicant is dissatisfied with the account appears from the notice of appeal, ground (g), which reads in part:

"The Tribunal erred in failing to make adequate findings of fact in its written reasons3 for decision ..."

The matter came before me on 1 March, when I ordered
that the parties agree, if possible, on a statement of the

facts. I was informed this morning that they have been unable

matter are, nor, as I have mentioned, is there a transcript of

to do so. There is no consensus as to what the facts of the

the evidence available.

The appeal under the Act is one on a question of law
only, but consideration of questions of law may necessitate
reference in some detail to the evidence, to determine precisely

what are the facts to which the law is to be applied. It seems +

to me that the applicant is in some difficulty as to the ground . >

of appeal, for example, which suggests that the Tribunal went wrong in law in the way in which it made findings of fact, and that the findings are inadequate.

The practice in situations of this sort in other courts, which I have looked at, seems to vary. Some courts work from notes of the court or tribunal. On other occasions a report has been sought to supplement the record. I have given consideration to those possibilities. The view which I have come to is that, the parties being unable to agree on the facts, the Full Court should not, in my opinion, enter upon a determination of the very awkward question of what was the evidence before the Tribunal.

It is, of course, highly unlikely that the Tribunal
itself has made a full record of the evidence. It is implicit
in the remarks I have read that it has not. I have therefore

whether from notes or recollection or both, beyond the account decided not to ask the Tribunal for an account of the facts,

which is given in the reasons.

I do not propose, either, to direct or permit the parties to file affidavits as to what they say the 'eiidence led before the Tribunal was. With one exception, which I will mention, the appeal must be conducted on the basis of the Tribunal's reasons. It may be, I recognize, that this will make it awkward for the applicant to raise the points it wants to raise.

I should add that the rules give a single judge power to give directions under order 53 rule 15 with respect to the conduct of such a proceeding as this. Nevertheless, it is plain that the Full Court may take whatever course it likes. All I am concerned about at the moment is whether, in advance of the Full Court hearing, any steps should be taken. My view is that they should not be; that is, that the tribunal's reasons should, subject to a reservation I have mentioned, constitute the exclusive account of the facts.

The reservation, however, which I make is that the supplementary notice of appeal raises a question, alleged to be one of law, which does require some supplementation of the record. The question of law which the supplementary notice of appeal asserts may be raised is whether the Tribunal had

the proceedings pursuant to s.42A(2)(a) of the Administrative	jurisdiction to review the decision, having previously dismissed
Ap~ealS	Tribunal Act 1975.

The provision referred to in that ground reads as

follows :

"If a party to a proceeding before the Tribunal in respect of an application for the review of a decision . . . fails either to appear in person or to Appear by representative at a preliminary conference held in relation to the application under section 34 or at the hearing of the proceeding, the Tribunal may - ... where the only other party to the proceeding is the person who made the decision - dismiss the application without proceeding to review the decision..."

Now, it appears that the applicant asserts that that power was exercised and that the Tribunal was then functus officio. The difficulty about raising that ground is that the facts relating to it are not in the record.

It appears to me, again, that it is undesirable to seek a report from the Tribunal itself. It is the Tribunal's actions which are challenged, and it seems to me that it may place the Tribunal in an invidious position, and perhaps would not give the appearance of doing justice between the parties, if the Court determined to accept the Tribunal's recollection as the sole source of information on this subject.

.

It, therefore, appears to me that it will be necessary for the applicant to file an affidavit. M r Sheehan, who appeared this morning, says that it is possible that if an affidavit is filed, then the respondent's counsel might wish to cross-examine. That, I am afraid, will have to be met when the
Court comes to it.	- .

I see no practical alternative other than to allow and, indeed, direct the applicant to file an affidavit on that subject. I will also let the respondent do so, but I gather

!	from f i Sheehan that the respondent cannot really say much. Now, the matter is set down for hearing at the end of next month. What I propose to do is to order that on or before the 9th day of April, the applicant file and serve an affidavit or affidavits succinctly stating the facts, with respect to the supplementary notice of appeal only.
I will order that any affidavit in reply on behalf of the respondent is to be filed and served on or befoxe the sixteenth day of April 1990. I will direct that apart from the subject matter dealt with by the supplementary notice of appeal, the proceedings shall be determined on the basis of the documents which have been forwarded to this court with the letter of the Administrative Appeals Tribunal dated 26 February
1990.
I will direct that the appeal papers consist of the documents I have just mentioned plus the notice of appeal, supplementary notice of appeal and the affidavits filed with respect to the point referred to in the supplementary notice of appeal. I certify that this and the five

preceding pages are a true copy of the reasons for judgment herein of His Honour Mr Justice Pincus.

=e-

Assoc ate -

I -

Counsel for the applicant:	W J. Casey
Solicitors for the applicant:	Australian Government Solicitor  I.i

I

Counsel for the respondent:	Mr T. Sheehan	, .
Solicitors for the respondent:	Bugden Summerton Sheehan	I ,
!
I.,
Date of Hearing:	28 March 1990	l
t , l
l