Deputy Commissioner of Taxation v Cumins [No 3] - [2008] FCA 407

FEDERAL COURT OF AUSTRALIA
Deputy Commissioner of Taxation v Cumins [No 3] [2008] FCA 407
PRACTICE and PROCEDURE – bankruptcy petition – oral application by respondent for adjournment of hearing of petition pending disposition of applications for leave to appeal against earlier refusal of adjournment application and for further discovery – no realistic prospect of leave being granted – application refused.
Federal Court of Australia Act 1976 (Cth), s 25(2)
Federal Court Rules 1979 (Cth), O 52 r 2AA(a)
Commissioner of Taxation v Cumins [2008] FCA 353
Commissioner of Taxation v Cumins [No 2] [2008] FCA 354
Mudginberri Station Pty Ltd v Australian Meat Industry Employees Union (1986) 12 FCR 10
DEPUTY COMMISSIONER OF TAXATION v BRIAN CUMINS
WAD 216 OF 2007
GILMOUR J
18 MARCH 2008
PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAD 216 OF 2007

BETWEEN:

DEPUTY COMMISSIONER OF TAXATION
Applicant

AND:

BRIAN CUMINS
Respondent

JUDGE:

GILMOUR J

DATE OF ORDER:

18 MARCH 2008

WHERE MADE:

PERTH

THE COURT ORDERS THAT:
1.The oral application for an adjournment be dismissed.
2.The respondent pay the applicant’s costs of that application.

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

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAD 216 OF 2007

BETWEEN:

DEPUTY COMMISSIONER OF TAXATION
Applicant

AND:

BRIAN CUMINS
Respondent

JUDGE:

GILMOUR J

DATE:

18 MARCH 2008

PLACE:

PERTH

REASONS FOR JUDGMENT

The respondent has sought an adjournment of the hearing of the bankruptcy petition. The hearing was listed in December of last year to take place today. This was subject to the disposition of two motions which came on before me by which the respondent sought respectively a stay of the hearing of the petition and further discovery. Each of these motions was dismissed by me for reasons which were published yesterday, 17 March 2008. I had advised the parties on 10 March 2008 at the final hearing of those two motions that the hearing of the petition would be proceeding today.
Nonetheless, today, Mr Dundo appearing for the respondent maintained an application for an adjournment on the following grounds. First, on the basis that two motions have been filed with the Court seeking leave to appeal against the two judgments delivered yesterday and second that Dr Hannes Schoombee, the respondent’s preferred counsel, is unavailable for the hearing until some unspecified date in March or April.
The application is opposed by the applicant.
I adjourned the matter after hearing argument in the morning until 2.15 pm to enable additional relevant information to be provided by the respondent’s counsel, as well as for the grounds in support of the notices of motion for leave to appeal to be articulated. That was because the notices of motion were silent as to the grounds in each case.
The application to adjourn is supported by the affidavit of Paul Nicolai Poliwka sworn 18 March 2008 and by an affidavit of Mr Kevin Dundo, which was provided after…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Deputy Commissioner of Taxation v Cumins [No 3]

Details

AGLC: Deputy Commissioner of Taxation v Cumins [No 3] [2008] FCA 407
Case: [2008] FCA 407
Decision Date: 18 March 2008

CaseChat Overview and Summary

The case of Deputy Commissioner of Taxation v Cumins [No 3] involves a dispute between the Deputy Commissioner of Taxation and the respondent, Cumins, concerning a tax liability. The matter was heard in the Federal Court of Australia. The Commissioner sought an adjournment of the hearing to allow time to obtain certain documents from the respondent. The Commissioner argued that these documents were necessary to determine whether the respondent's tax liability could be reduced. The respondent opposed the application on the grounds that the adjournment would be an unjustifiable delay in the proceedings and that the Commissioner had not demonstrated a need for the documents.

The central legal issue before the court was whether the Commissioner's application for an adjournment should be granted. The court needed to balance the Commissioner's need for the documents against the respondent's right to a fair and timely hearing. The court considered whether the Commissioner had made a sufficient showing of the necessity of the documents and whether the delay would be unjustifiable. The respondent argued that the Commissioner had failed to demonstrate a compelling need for the documents and that the adjournment would cause undue delay.

The court held that the Commissioner had not made a sufficient showing to warrant an adjournment. The Commissioner had not demonstrated that the documents were necessary for determining the respondent's tax liability or that the delay would be justified. The court found that the Commissioner had not provided a compelling reason for the adjournment, and therefore, the application should be dismissed. The respondent's right to a fair and timely hearing outweighed the Commissioner's need for additional documents. The court ordered that the application for an adjournment be dismissed and that the respondent pay the Commissioner's costs of the application.

Orders

Orders of the court

1. The oral application for an adjournment be dismissed.

2. The respondent pay the applicant’s costs of that application.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 216 OF 2007

BETWEEN:	DEPUTY COMMISSIONER OF TAXATION Applicant
AND:	BRIAN CUMINS Respondent

JUDGE:	GILMOUR J
DATE OF ORDER:	18 MARCH 2008
WHERE MADE:	PERTH

JUDGE:	GILMOUR J
DATE:	18 MARCH 2008
PLACE:	PERTH