Deputy Commissioner of Taxation v Cutts (No.3)
[2017] FCCA 2762
•13 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DEPUTY COMMISSIONER OF TAXATION v CUTTS (No.3) | [2017] FCCA 2762 |
| Catchwords: PRACTICE AND PROCEDURE – Request for transcript of hearing before a Registrar – where no transcript – where application for review is a fresh hearing. |
| Legislation: Federal Circuit Court of Australia Act 1999 (Cth), s.104(2) and (3) |
| Cases cited: Cassimatis & Anor v Australian Securities and Investments Commission [2016] FCA 131; (2016) 334 ALR 350 Lavan Legal v Kenyon [2017] FCCA 2529 Sanders v Snell (No.2) (2000) 174 ALR 53 |
| Applicant: | DEPUTY COMMISSIONER OF TAXATION |
| Respondent: | MAURICE JAMES CUTTS |
| File Number: | PEG 47 of 2016 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 13 November 2017 |
| Date of Last Submission: | 13 November 2017 |
| Delivered at: | Perth |
| Delivered on: | 13 November 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr T de Bes |
| Solicitors for the Applicant: | Australian Government Solicitor |
| For the Respondent: | No appearance |
ORDERS
The matter be adjourned to 2.15pm on 16 November 2017 for further hearing.
Costs be reserved.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 47 of 2016
| DEPUTY COMMISSIONER OF TAXATION |
Applicant
And
| MAURICE JAMES CUTTS |
Respondent
REASONS FOR JUDGMENT
(Delivered extemporaneously and later edited)
Introduction
These proceedings concern an application for review of a sequestration order made by a Registrar of this Court on 13 September 2016 (“Sequestration Order”).
On 16 October 2017 the Court made the following orders:
1. The further hearing of the matter be adjourned to 2.15pm to 16 November 2017 subject to order 3 below.
2. A copy of the transcript of today’s proceedings be provided electronically to the Respondent by the Court as soon as possible after if it becomes available.
3. There be liberty to apply, provided that any application for adjournment of the further hearing:
a. be made by no later than 2 November 2017;
b. must be made by way of an application in a case supported by an affidavit or affidavits;
c. be provisionally listed for hearing at 2.15pm on 13 November 2017; and
d. if made on medical grounds:
i. be supported by an affidavit or affidavits of a medical practitioner or medical practitioners annexing a report or reports as to the medical grounds for adjournment, such report or reports to be in the form of an expert’s report and in a form which complies with the requirements of the Expert Evidence Practice Note issued by the Federal Court of Australia on 25 October 2016; and
ii. admission of any affidavit or affidavits or report or reports referred to in placita (i) above be subject to the deponent of any affidavit and the author of any report being made personally available for cross-examination by the applicant at the time provisionally listed for the hearing of any adjournment application at 2.15pm on 13 November 2017 in Hearing Room 6.2 of the Commonwealth Law Courts Building, 1 Victoria Avenue Perth WA, if the applicant requires them to attend for cross-examination.
4. Costs be reserved.
And the Court notes that the further hearing date on 16 November 2017 has been fixed having regard to the Respondent advising the Court he is available to attend Court on that date.
The orders followed earlier decisions of this Court which set out the litigation history of this matter, and which need not be repeated here, but see Deputy Commissioner of Taxation v Cutts [2017] FCCA 1760 and Deputy Commissioner of Taxation v Cutts (No.2) [2017] FCCA 2480. It suffices to observe, however, that the Court has given Mr Cutts every opportunity to appear to argue his case for adjournment of the substantive or further hearing of his application (and some emphasis must be placed upon the fact that it is his application) for review of the Sequestration Order made by a Registrar of this Court on 13 September 2016. A further opportunity has been afforded today, and there is no appearance by Mr Cutts to argue for an adjournment, which is unsurprising, given that no application in a case has been filed seeking adjournment in accordance with the Court’s orders of 16 October 2017.
At the hearing on 16 October 2017 (which Mr Cutts did not attend) an issue arose as to advice to the parties concerning that hearing date, and the following was said by the Court:
HIS HONOUR: Mr de Bes there has been some correspondence with the parties in relation to submissions in which there was a typographical error in relation to the date of today’s hearing. I don’t know whether you’re aware of that. But from chambers the date was put on there – of 16 November 2017, which has elicited a response from Mr Cutts to indicate that he’s available on that date. What the court proposes to do in the circumstances is hear from you today as to the formal requirements with respect to the bankruptcy. The court has read the submissions that are otherwise made and doesn’t need to hear from you in relation to the other matters. We can take those as read.
Subject to anything you’ve got to say, the court then proposes to adjourn the matter to 16 November to hear from Mr Cutts with orders – essentially – in terms of the orders that were made on 3 August. So there will be a provisional listing and a final listing again, and Mr Cutts indicated he’s available on 16 November. In the circumstances he will be given the opportunity to appear by the court on that date. And if he doesn’t appear on that date, subject to the orders that are made, then the court will proceed on 16 November. Is there anything you wish to say about that, or do you simply wish to make submissions in relation to the formal requirements with respect to the bankruptcy?
MR DE BES: No, your Honour. Nothing to say. Sorry. I wasn’t aware of the incorrect date. Was that - - -
HIS HONOUR: There was a – there was some correspondence chambers sent, I think, to all of the parties requesting submissions, maybe, copies of submissions ..... copies of authorities.
MR DE BES: Yes.
HIS HONOUR: And it had “16 November” rather than “16 October” on it, and that elicited the response from Mr Cutts that he was available on that date. And as I say, the court is prepared to take him at his word in that regard ..... make appropriate arrangements, which will require some relisting of other matters, but so be it.
Transcript, 16 October 2017, page 2.
Mr Cutts has therefore had the benefit of:
a)the written submissions filed by the Deputy Commissioner on 1 September 2017; and
b)by way of provision of the transcript of 16 October 2017 the submissions made on behalf of the Deputy Commissioner orally to the Court in support of the formal requirements with respect to the issuance of a sequestration order.
Where:
a)no application in a case to adjourn has been made by Mr Cutts; and
b)Mr Cutts has been afforded the benefit of a lengthy period of time to consider:
i)the Deputy Commissioner’s written submissions; and
ii)the transcript of the hearing on 16 October 2017,
there is nothing in the foregoing which warrants the adjournment of the further hearing of this matter on 16 November 2017.
The Court has, however, been made aware of certain exchanges of correspondence between the Presiding Judge’s Chambers (“Chambers”) and Mr Cutts since the making of the 16 October 2017 orders concerning the provision of another transcript. That correspondence is set out hereunder.
The correspondence commences with an email of 16 October 2017 from Chambers sent to both parties, in the following terms:
Please find attached the following documents:
1. A copy of the order made by His Honour on 16 October 2017;
2 A copy of the Reasons for Judgment pursuant to the order of His Honour dated 11 October 2017;
3. A Notice of Listing for the provisional hearing on 13 November 2017; and
4. A Notice of Listing for the hearing on 16 November 2017.
A copy of the full transcript of today’s proceedings will be forwarded as soon as available. Please read these documents to ensure future Court deadlines are met.
The 16 October 2017 email was followed on 19 October 2017 by a further email from Chambers this time to Mr Cutts (but copied to the lawyers for the Deputy Commissioner of Taxation) in the following terms:
Pursuant to order 2 of His Honour’s orders made Monday 16 October 2017 (sent Monday 16 October 2017), please find attached a copy of the transcript of proceedings for the hearing also heard on Monday 16 October 2017.
A copy of the transcript referred to was attached to the 19 October 2017 email.
On 9 November 2017 Mr Cutts and another person, Cheryl Kozisek (“Ms Kozisek”) (who is apparently Mr Cutts’ sister), forwarded to Chambers a copy of an email response from Auscript (the transcript service providers for this Court), and seemingly directed to Mr Cutts, which was in the following terms:
Dear Maurice
Thank you for your recent request.
Auscript’s contractual arrangement with the Federal Circuit Court does not permit recording or transcription of any Federal Circuit Court matters heard in front of a Registrar.
As such we are unable to fulfill your request in this instance.
Please do not hesitate to contact our office for future transcript requests
The 9 November 2017 email from Mr Cutts and Ms Kozisek elicited the following response from Chambers:
See below correspondence sent by the Court on Thursday 19 October with the attached transcript.
Mr Cutts responded to the 9 November 2017 email from Chambers in a further email dated 9 November 2017 in the following terms:
Hi,
There seems to be a misunderstanding. The public record – transcript that has been requested is dated 13/9/2016 – PEG 47/2016 (Register Trott).
Annexed to Mr Cutts’ 9 November 2017 email was the original request to Auscript which was for the transcript of the proceedings before a Registrar of this Court on 13 September 2016.
Seemingly before any response was sent to Mr Cutts’ 9 November 2017 email a further email was sent by Mr Cutts and Ms Kozisek in the following terms:
We are requesting a very simple matter, Auscript are not able to provide us with a copy of the Public Record/Transcript on 13/09/2016 – PEG47/2016. Auscript have notified us to contact the Federal Circuit court itself for the Public Record/Transcript 13/09/2016 – PEG47/2016. Please forward us a copy of the Public Record/Transcript on 13/09/2016 – PEG 47/2016).
A response from Chambers was sent to Mr Cutts on 10 November 2017 in the following terms:
The transcript you are referring to from 13 September 2016 was heard by Registrar Trott, you should direct your request to the Registry.
The Court has checked today with the relevant Registrar and been advised that the hearing on 13 September 2016 was, in fact, not transcripted. As advised to Mr Cutts by Auscript in the email from Auscript incorporated into Mr Cutts’ 9 November 2017 email there is no transcript of the hearing before the Registrar on 13 September 2016 because Auscript are not contracted to provide transcript of hearings before a Registrar of this Court. Those hearings are not otherwise, or independently, recorded or transcripted. There is, therefore, no transcript of the hearing of this matter before a Registrar of this Court on 13 September 2016.
The hearing of an application for review under s.104(2) and (3) of the Federal Circuit Court of Australia Act 1999 (Cth) (“FCCA Act”) does not require the exclusion of the relevant record of the proceedings including the conclusion reached by a Registrar of this Court. In Cassimatis & Anor v Australian Securities and Investments Commission [2016] FCA 131; (2016) 334 ALR 350 at [16] per Edelman J the Federal Court observed that in Sanders v Snell (No.2) (2000) 174 ALR 53 at 56 per Kirby J it was suggested that by not using the label "de novo" (that description is not used in s.104(2) or (3) of the FCCA Act) there is an inference that the review may take into account, and place weight upon, the discretion of the Registrar particularly where the discretion is exercised with some frequency and skill.
For the Court’s part it is relevant to observe that it is generally accepted on an application for review of a Registrar’s decision that the Court is engaged in a new hearing or a hearing afresh of the application being reviewed. In Lavan Legal v Kenyon [2017] FCCA 2529 at [57]-[58] per Judge Lucev the Court observed as follows:
57. A hearing under s.104(2) of the FCCA Act is a hearing de novo and the relevant matter is considered afresh: Pattison v Hadjimouratis [2006] FCAFC 153; (2006) 155 FCR 226; (2006) 236 ALR 1; (2006) 4 ABC(NS) 367 at [3]-[20] per Nicholson J and [39] per Jacobson J; Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194; (2000) 74 ALJR 1348; (2000) 99 IR 309; (2000) 174 ALR 585 at [13] per Gleeson CJ, Gaudron and Hayne JJ; Cassimatis & Anor v Australian Securities and Investments Commission [2016] FCA 131; (2016) 334 ALR 350 at [12] per Edelman J (“Cassimatis”); University of Southern Queensland v Luck [2017] FCCA 639; (2017) 318 FLR 147 at [94] per Judge A Kelly.
58. Upon the hearing of an application under s.104(2) of the FCCA Act to review a sequestration order the party seeking a sequestration order must still satisfy the Court that the necessary conditions required to be proved by s.52(1) of the Bankruptcy Act for a sequestration order have been met: Totev v Sfar & Anor [2008] FCAFC 35; (2008) 167 FCR 193; (2008) 247 ALR 180; (2008) 5 ABC(NS) 691 at [27]-[29] per Emmett J (“Sfar-Full Court”); Zdrilic & Anor v Hickie & Anor [2016] FCAFC 101; (2016) 246 FCR 532; (2016) 14 ABC(NS) 232 at [66] and [72] per Katzmann, Farrell and Markovic JJ; Kerr in his Capacity as Trustee of the Bankrupt Estate of Cross & Anor v Akcan [2017] FCCA 1128 at [29] per Judge Driver; Deputy Commissioner of Taxation v Webb [2017] FCCA 1137; (2017) 320 FLR 371 at [17] per Judge Joshua Wilson.
These proceedings have not however reached the stage of the Court determining whether or not to place any weight upon the Registrar’s exercise of discretion in determining to grant the Sequestration Order on 13 September 2016. That would ordinarily be a task undertaken at the further hearing listed for 16 November 2017.
Even if there were transcripts of the Registrar’s hearing of 13 September 2016 it is doubtful, with respect, that the Court would be much assisted by them in circumstances where the matter is to be heard afresh by a judge of the Court.
In the circumstances, and in particular because the matter is heard afresh before a Judge of the Court, nothing turns on the fact that there is no transcript of the Registrar’s hearing on 13 September 2016, and there is no impediment on that account to the further hearing of the application for review by this Court. That further hearing will therefore proceed on 16 November 2017 at 2.15pm, in accordance with the Court’s orders of 16 October 2017. There will be an order that the matter be adjourned to that time and date for further hearing. At this stage, it is intended that the further hearing be the final hearing of the application for review.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 13 November 2017
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