Deputy Commissioner of Taxation v Snell

[2019] NSWDC 159

District Court

New South Wales

Medium Neutral Citation:

Deputy Commissioner of Taxation v Snell [2019] NSWDC 159

Hearing dates:

3 – 5 April 2019

Date of orders:

02 May 2019

Decision date:

02 May 2019

Jurisdiction:

Civil

Before:

Weber SC DCJ

Decision:

(1) Judgment and Verdict for the plaintiff in the sum of $33,811.76

 

(2) Interest thereon at the rates prescribed from time to time pursuant to Practice Note DC Civil No. 15

 (3) The defendant to pay the plaintiff’s costs

Catchwords:

TAXATION AND DUTIES – Taxation Administration Act 1953 (Cth) Schedule 1, ss 269-15, 269-20, 269-25, 269-30, 269-35 - income tax and related legislation – company in liquidation - recovery of penalties from director for company’s PAYG withholding and superannuation guarantee charge liabilities – Director Penalty Notice issued by Commissioner - whether proceedings invalidly commenced by virtue of the Commissioner’s failure to issue fresh Director Penalty Notice following Notice of Amended Assessment – director’s defences – whether illness or some other good reason prevented director from taking part in management of the company during relevant period – whether it was unreasonable to expect director to take part in management of the company - whether director took all reasonable steps to take certain mandated steps

Legislation Cited:

Corporations Act 2001 (Cth)
Income Tax Assessment Act 1936 (Cth)
Superannuation Guarantee (Administration) Act 1992 (Cth)
Taxation Administration Act 1953 (Cth)

Cases Cited:

Canty v Deputy Commissioner of Taxation (2005) 63 NSWLR 152
DCT v Clark (2003) 57 NSWLR 113
DCT v Woodhams (2000) 199 CLR 370
Deputy Commissioner of Taxation v Clark (2003) 57 NSWLR 113
Deputy Commissioner of Taxation v Holton [2016] VCC 516
Deputy Commissioner of Taxation v Lawson [2017] VSC 789
Deputy Commissioner of Taxation v McArdle [2003] QCA 282; [2004] 2 Qd R 495
Deputy Commissioner of Taxation v Robertson (2009) 234 FLR 35
Deputy Commissioner of Taxation v Saunig (2002) 55 NSWLR 722
Deputy Commissioner of Taxation v Solomon (2003) 199 ALR 325
Deputy Commissioner of Taxation v Stenner [2003] QDC 053
Forsyth v Deputy Commissioner of Taxation (2004) NSWLR 132
Miller v Deputy Commissioner of Taxation (1997) 26 ACSR 533
Power v DCT (2013) 284 FLR 42
Roche v Deputy Commissioner of Taxation [2015] WASCA 196
Shaw v Deputy Commissioner of Taxation; Rablin v Deputy Commissioner of Taxation (2016) 104 ATR 1; [2016] QCA 275

Category:

Principal judgment

Parties:

Deputy Commissioner of Taxation (Plaintiff)
Mr K. Snell (Defendant)

Representation:

Counsel:
Ms J. Gatland (Plaintiff)
Mr S. Ipp (Defendant)

  Solicitors:
Hunt & Hunt (Plaintiff)
M&K Lawyers Group Pty Ltd (Defendant)

File Number(s):

2017/00131270 - 001

Publication restriction:

None

Judgment

Introduction

1. These proceedings concern the plaintiff’s (“Commissioner”) claim for judgment in respect of the defendant’s alleged liability for director penalties pursuant to section 269-20 of Schedule 1 of the Taxation Administration Act 1953 (Cth) (“TAA”).

2. The underlying taxation liability arises from the non-remittance of Pay As You Go withholding (“PAYGW”) amounts and superannuation guarantee charge (“SGC”) amounts payable by a company, The CAT CLUB Pty Ltd (“Company”), now in liquidation. At all relevant times, the defendant, Mr Snell was one of two directors of the Company.

3. The Statement of Claim filed on 2 May 2017 sought to recover a debt of $201,738.48 together with costs. The Further Amended Statement of Claim, filed by consent on 16 October 2018, seeks judgment for $35,655.76 (inclusive of costs), the amount claimed having been reduced by the application of credits which arose from Mr Snell’s income tax assessments.

4. The proceedings were conducted on the basis that if the defendant’s defences were made out, it would have the consequence not only that the sum sought by the Commissioner would not be payable, but also that the credit to which I have referred, would be repaid by the Commissioner.

5. In broad terms, the defendant advances two distinct forms of defence. He says that:

1. the proceedings were commenced invalidly (the “Invalidity Submission”); and alternatively,

2. he has available to him statutory defences pursuant to the provisions of section 269 – 35 of Schedule 1 of the TAA (the “Statutory Defences”).

6. It may be helpful to further elaborate on the statutory background to the proceedings.

7. The policy objectives of the legislative scheme of which section 269-20 forms part, were explained in DCT v Woodhams (2000) 199 CLR 370 at 376:

The provisions so far considered relate to the liability of employers in respect of amounts deducted from salary and wages on account of the tax liabilities of employees. As was pointed out by Phillips JA in Woodhams v DCT, this is not a liability to pay tax. It concerns a responsibility to collect tax, and an obligation to remit the amounts collected. The relevant taxpayers are the employees. Division 9 seeks to protect the revenue by the imposition of penalties upon directors of non-remitting corporate employers.

8. Pursuant to Divisions 12 and 16 of Schedule 1 of the TAA, an entity (in this case, the Company) is required to withhold an amount from payments made to employees or office holders and to remit those payments to the Commissioner, in accordance with section 16-70(1) of Schedule 1 of the TAA. Similarly, the Company was required to meet its obligation to pay amounts of SGC arising under the Superannuation Guarantee (Administration) Act 1992 (Cth).

9. Section 269-15 of Schedule 1 to the TAA sets out the obligations of a director in respect of unpaid PAYGW and SGC amounts:

1. Section 269-15(1) provides that the directors of the company from time to time, on or after the initial day on which the obligation arises, must cause the company to comply with its obligations to pay amounts of PAYGW and SGC owing by the company; and

2. Section 269-15(2) provides that, if section 269-15(1) is not complied with on or before the due day, the directors of the company from time to time after the due day, continue to be under the obligation, until:

1. the company complies with its obligation; or

2. an administrator is appointed to the company; or

3. the company begins to be wound up.

10. Section 269-20 of Schedule 1 of the TAA provides that a director is liable to pay a penalty if the obligations of that director pursuant to section 269-15 are not met, such liability being equal to the amount of PAYGW and/or SGC that the company had failed to remit.

11. The Commissioner must give 21 days’ notice by way of a director penalty notice (“DPN”) before commencing recovery proceedings: section 269-25. Pursuant to section 269-30, the penalty will be remitted if the director complies with the DPN within that 21-day period by either taking action to ensure:

1. the company’s liability has been discharged; or

2. an administrator is appointed to the company; or

3. the company begins to be wound up.

The Detail of the Commissioner’s Claim

12. The proceedings were commenced by way of Statement of Claim filed on 2 May 2017. By that claim, as originally pleaded, the Commissioner sought to recover from Mr Snell:

1. director penalties in the amount of $201,738.48; and

2. costs.

13. The claim was amended on about 22 January 2018. Those amendments increased the penalty amount to $216,447.12, together with costs.

14. By Further Amended Statement of Claim (“FASOC”) filed on 16 October 2018, the Commissioner seeks to recover from Mr Snell:

1. director penalties in the amount of $33,811.76; and

2. costs.

15. As I have indicated, the Commissioner allocated a credit to Mr Snell’s personal tax account of $271,032.52. This credit arose as a result of assessments of Mr Snell’s income tax liabilities for the financial year ended 30 June 2016.

16. The penalties component of the claim (before the application of the $271,032.52 credit) comprised:

1. an amount of $86,754.00 being director penalties imposed in respect of the failure to remit PAYGW amounts; and

2. an amount of $129,693.12 being director penalties imposed in respect of the failure to remit SGC amounts.

17. The Company had notified the Commissioner through the filing of self-assessed business activity statements (BAS), that it had withheld tax for eight periods. In each of the periods, the Company withheld money from employees’ income tax that was required to be remitted to the Commissioner.

18. On about 16 April 2014, the Commissioner further assessed the Company as being liable to SGC (Ex D1, p 652). Notices of amended assessment to the SGC were issued on 30 July 2014 (Ex D1, p 664). The Company did not comply with its obligations in respect of the SGC.

19. The defendant was a director of the Company from about 5 April 2002 to 6 October 2015, on which date the Company was placed into liquidation. For all relevant periods, he was one of two directors, the other director being Mr Ireland. Accordingly, Mr Snell was a director at each of the relevant due dates.

20. The Commissioner asserts that, as a consequence of the Company failing to remit the PAYGW and SGC amounts, the defendant, as its director, became liable automatically to a penalty equal to the amount that the Company had failed to remit by reason of the application of section 269-20 of Schedule 1 of the TAA.

The Factual Background

21. The defendant is a Queanbeyan based businessman. He is an electrical engineer by training, and he has various companies which are based in Canberra, and are involved in defence procurement. This appears to be Mr Snell’s core line of business, but he has branched out into other areas of commercial activity.

22. The defendant met Mr Ireland in the 1990s and they commenced doing business together in 1996.

23. The Company was incorporated on 9 August 2001. Mr Ireland and a Mr Dutton were the Company’s original directors. In about August 2001, the Company established and commenced operating a restaurant business in Richmond, Melbourne which traded as "Church St Enoteca” (“Restaurant”). At that time, Mr Snell agreed to join Mr Ireland as a partner in the Restaurant business, but Mr Ireland was responsible for its day to day operations.

24. On 5 April 2002, Mr Snell was appointed a director of the Company and acquired a 50% of the shareholding in it. On 9 December 2003, Mr Dutton ceased to be a director of the Company and from that time onwards, the two directors and shareholders of the Company were Mr Ireland and Mr Snell. From about April 2002 to 2014, Mr Ireland remained solely responsible for the day to day management and operation of the Restaurant. This in part reflected the practical consideration that Mr Ireland was based in Melbourne (as was the Restaurant) and Mr Snell was based in Queanbeyan. It also reflected the fact that in 2002, Mr Ireland had some experience in operating a restaurant, while Mr Snell did not.

25. In the period from April 2002 to 2012, the defendant took an active part in the management of the Company. Mr Snell travelled regularly to Melbourne and met with Mr Ireland in order to be briefed on the financial performance of the Restaurant. Mr Snell received and reviewed financial statements provided to him by the Company’s accountants, and signed solvency resolutions for the period 2004 to 2012.

26. From 2012, it appeared that the defendant’s relationship with Mr Ireland deteriorated. Mr Snell submits that in the period from 2012 to 6 October 2015 (the date of the Company’s liquidation) he was “excluded” from the management of the Company. In his written submissions, he alleges as follows:

• Mr Ireland regularly failed or refused to return the defendant’s telephone calls which were made for the purpose of discussing the Company’s affairs.

• Mr Ireland regularly failed or refused to meet with the defendant for the purpose of discussing the Company’s affairs.

• Mr Ireland failed or refused to cause draft or final management accounts or draft or final financial statements prepared for the Restaurant.

• Mr Ireland failed or refused to provide the defendant with financial information in respect of the Restaurant.

• Mr Ireland failed or refused to cause the Company’s accountants to provide financial information for the Company to the defendant.

• Mr Ireland failed or refused to keep the defendant informed of the following matters:

1. the Company’s true financial position, in particular, the extent of its taxation liabilities;

2. the extent of Mr Ireland's personal financial difficulties;

3. the fact that the Company’s accountants ceased performing their regular accounting functions for the Company from June 2013 onwards;

4. the fact that the Company had failed to lodge or otherwise had outstanding income tax returns for 2007, 2008, 2009, 2010, 2011 and 2012 income years;

5. the fact that the Company had failed to lodge or had outstanding BAS returns for May 2013, June 2013, July 2013, August 2013, September 2013 and October 2013; and

6. the sale in 2014 of the Restaurant.

• In the circumstances, Mr Snell relied on Mr Ireland to provide financial information about the Company and the Restaurant. As far as Mr Snell was aware, the financial position and performance of the Restaurant, (including the discharging of its PAYG and superannuation requirements) were the responsibility of Mr Ireland in the period from 2012 until 6 October 2015.

Mr Snell’s Medical Condition

27. Unfortunately, in the period from 2012, the defendant suffered from very significant bouts of ill-health. The fact of the nature of these illnesses was not in issue. The defendant made very detailed submissions as to the medical difficulties which he confronted in the period.

28. By way of brief summary, during the period of 2012 and 2013, Mr Snell suffered from angina, basal creps, ankle swelling, cardiac failure, paroxysmal nocturnal dyspnoea (PND), sleep apnoea, gout, diabetes, severe osteoarthritis, hypertension, chronic kidney disease, peripheral oedema/fluid build-up, and heart-burn.

29. On about 21 March 2013, Mr Snell suffered a severe heart attack while on a business trip in China. At a hospital in Hong Kong, a coronary angiography and stent procedure were performed.

30. The defendant provided a document by way of submission entitled “Defendant’s Medical Chronology” which, as its name suggests, sets out Mr Snell’s various medical conditions in the period from April 2012 to August 2014. Given the importance of the issue of Mr Snell’s health to aspects of his defence, I have annexed this document to these Reasons, inserting evidence references in the final column.

Dr Eccleston

31. Mr Snell was treated by a Melbourne based cardiologist, Dr David Eccleston, on 7 occasions in the period 2008 to 2014. In his report dated 18 February 2019, Dr Eccleston expressed his opinion that (Ex D6, p 384-385):

In regard to Mr Snell’s fitness to work as a company director during the period of 1st July, 2012 and 2nd September 2014, he was severely limited in physical capability and also ability to concentrate and function as a company director by a combination of reduced cardiac function, recurrent symptoms of angina and subsequent episodes of cardiac failure.

With these conditions it would not be possible for Mr Snell in act in full capacity in any high-level role such as a company director due to fatigue, poor concentration, recurrent cardiac symptoms and also a large burden of medication and the need to maintain a fluid restriction and appropriate physical activity. This would also limit his ability to travel to a place of work or indeed interstate or internationally if this was part of the requirement of his position as a company director.

32. Dr Eccleston was cross-examined, and during his cross-examination, made clear that his assessment of the impairment to Mr Snell's cognitive capacities, was not so much observed by him, but rather, was taken from what medical literature suggests were the common effects of both the illnesses which Mr Snell confronts, and the medications to treat them. An exception to this observation is the fact that Dr Eccleston recalled on one or more consultations, that Mr Snell did not recall certain details of both his hospitalisations, and his medication (T 48.32-36).

33. The defendant also relied upon reports and medical notes of other treating doctors, none of which expressed an opinion, in terms, that Mr Snell’s medical conditions led to him being unable to discharge his duties as a director. Indeed, certain of them tended to suggested otherwise. Dr Anthony Stevenson, Mr Snell's general practitioner, provided a report dated 13 February 2019. In the report, he deals with his assessment of Mr Snell's condition in 2012, the year before Mr Snell suffered a heart attack on his trip in China. Dr Stevenson noted the following in the report (Ex D5, p 347):

Mr Snell’s competence and cognitive capacity was not a subject of his consultations during 2012, thus I cannot provide an opinion with respect to his capacity.

However, ordinarily, I would not expect chronic kidney disease stage 3a, nor microscopic haematuria, nor borderline iron deficiency, nor microalbuminuria to have any impact upon cognitive functioning nor mobility, as all of these conditions are usually asymptomatic conditions diagnosed by laboratory testing only.

34. Dr Stevenson also details Snell's condition following his heart attack suffered in China in March 2013, in which he reports (Ex D5, p 347-348):

Mr Snell’s competence and cognitive capacity was not a subject of his consultations on 10/05/2012, thus I cannot provide an opinion with respect to his capacity. My notes do not indicate any concerns in this regard, and that he had recovered well.

35. In response to the invitation from the defendant’s solicitors for “any additional information, which I consider to be of note, regarding Mr Snell's functioning and capacity during the relevant period”, Dr Stevenson reported (Ex D5, p 348):

I note that Mr Snell suffered with frequent stable angina due to his ischaemic heart disease from January 2010 until the coronary stenting procedure in March 2013.

In my opinion, it is reasonable to assume that during moments of symptomatic angina, the pain is likely to have distracted him transiently from being able to apply full concentration to other duties and tasks, i.e. during the transitory period of pain.

36. Dr Stevenson went on to say (Ex D5, p 348):

Mr Snell was also significantly afflicted by osteoarthritis and gout to the extent that it impaired his ability to exercise regularly, but not to the extent that he was unable to travel frequently about the country.

37. Mr Snell also relied upon the medical report of Dr Gavin Carney, who is a Canberra based nephrologist. Dr Carney narrates that he saw Mr Snell on 27 February 2014 and reported “there was no cognitive impairment”. Dr Carney also reports that when he saw Mr Snell in February 2015, he was "in good health” and “stable of his cardiac failure.” Dr Carney further noted that Mr Snell was “no longer physically incapacitated.” (Ex D4, p 330-331).

The Invalidity Submission

38. Section 269 – 25 of the TAA is in the following terms:

269-25 Notice

Commissioner must give notice of penalty

(1) The Commissioner must not commence proceedings to recover from you a penalty payable under this Subdivision until the end of 21 days after the Commissioner gives you a written notice under this section.

Content of notice

(2)  The notice must:

(a) set out what the Commissioner thinks is the unpaid amount of the company’s liability under its obligation; and

(b) state that you are liable to pay to the Commissioner, by way of penalty, an amount equal to that unpaid amount because of an obligation you have or had under this Division; and

(c) explain the main circumstances in which the penalty will be remitted.

(3)  To avoid doubt, a single notice may relate to 2 or more penalties, but must comply with subsection (2) in relation to each of them.

When notice is given

(4) Despite section 29 of the Acts Interpretation Act 1901, a notice under subsection (1) is taken to be given at the time the Commissioner leaves or posts it.

Note 1: Section 28A of the Acts Interpretation Act 1901 may be relevant to giving a notice under subsection (1).

Note 2: Section 269‑50 of this Act is also relevant to giving a notice under subsection (1).

39. Mr Ipp, of Counsel, who appeared for the defendant, points to the fact that the notice required under section 269 – 25 must set out “what the Commissioner thinks is the unpaid amount of the Company’s liability under its obligations.” He places emphasis on the verb “thinks”.

40. The DPN dated 28 April 2014, which is central to the Invalidity Submission, seeks from the defendant the sum of $114,948.18 (Ex D1, p 656). This total includes a component of $1,258.30 in respect of SGC amounts in the quarter ended 30 September 2013 (Ex D1, p 658). On 25 August 2014, a Notice of Amended Assessment in respect of SGC was issued to the Company in respect of the same period. This amended assessment was in the sum of $19,810.01 (Ex D1, p 682)

41. The original Statement of Claim filed on 2 May 2017 did not include any amount in respect of SGC for the quarter ended 30 September 2013. It claimed in total the sum of $113,726.18.

42. The Statement of Claim was amended on 22 January 2018 to seek the sum of $129,693.12. This total included the sum of $19,801.01 in respect of the 30 September 2013 quarter.

43. The defendant submits that the DPN of 28 April 2014 represented what the Commissioner thought was the amount payable in respect of SGC at that date, but what the Commissioner “thinks” for the purposes of section 269 – 25 of the TAA, evidently changed in the period between the DPN and August 2014, when the Notice of Amended Assessment was raised. The defendant points out that while the Notice of Amended Assessment was notified to the Company, it was not notified to him.

44. The defendant’s argument is that, as the Commissioner had changed what he “thinks”, he is precluded from commencing proceedings until such time as the defendant is served a further DPN, which reflects the Commissioner’s current thinking. As this did not occur prior to the commencement of these proceedings, the argument progresses that the Commissioner has failed to comply with the statutory precondition for the commencement of proceedings pursuant to section 269 – 25.

45. The argument then proceeds to the conclusion that the proceedings are a nullity.

46. I do not consider that the defendant’s submission is correct.

47. The purpose of a DPN pursuant to section 269 – 25 is simply to put the taxpayer on notice of the Commissioner’s assertion of the taxpayer’s liability. The notice does not impose this liability, nor does it create a cause of action (DCT v Woodhams (2000) 199 CLR 370 at [19]). It is a statutorily mandated form of notice before action.

48. In Deputy Commissioner of Taxation v McArdle [2003] QCA 282; [2004] 2 Qd R 495, the Queensland Court of Appeal was considering the same provisions as were the subject of the High Court’s decision in Woodhams. Davies JA (with whom Williams JA and Jerrard JA agreed) stated as follows:

[14] Section 222AOE is a notice before action provision. It has two purposes. The first is to inform the recipient of the unpaid amount of the company's liability under the remittance provision, as then known to the Commissioner. And the second is to inform the recipient of the alternative courses available, as set out in s 222AOE(b), which will result in remission of the penalty, the object being to encourage the recipient to take such steps as are necessary to bring about the result that one or other of these courses is followed.

[15] I have taken this statement of the purposes of s 222AOE from the judgment of the High Court in Deputy Federal Commissioner of Taxation v Woodhams, adding to the first of those purposes the words ‘as then known to the Commissioner’. I think that is a permissible addition given that the Commissioner's only or, at least, usual source of this information is the notification which the company is obliged to give pursuant to s 220AAOA; that this purpose may also be accurately described as to adequately inform the recipient about the amount which, at the date of the notice, the Commissioner asserts is the recipient's liability; and that the validity of the notice must be determined as at the time it was given (footnotes omitted; emphasis added).

49. The decision in McArdle was referred to with approval by Spigelman CJ in Forsyth v Deputy Commissioner of Taxation (2004) NSWLR 132 at [45] to [46].

50. I should add that each of Woodhams, McArdle, and Forsyth concerned the predecessor provisions to section 269 – 25, but it was common ground between the parties that the preceding provisions under consideration in those authorities were not materially different from the present provisions, and as such, had application to them. That this conclusion was correctly made, is confirmed in Power v DCT (2013) 284 FLR 42.

51. As the authorities indicate, section 269 – 25 creates no liability to the Commissioner. Liability is created in section 269 – 20 which is in the following terms:

269-20 Penalty

Penalty for director on or before due day

(1) You are liable to pay to the Commissioner a penalty if:

(a) at the end of the due day, the directors of the company are still under an obligation under section 269‑15; and

(b) you were under that obligation at or before that time (because you were a director).

Note: Paragraph (1)(b) applies even if you stopped being a director before the end of the due day: see subsection 269‑15(2).

(2) The penalty is due and payable at the end of the due day.

Note: The Commissioner must not commence proceedings to recover the penalty until the end of 21 days after the Commissioner gives you notice of the penalty under section 269‑25.

Penalty for new director

(3) You are also liable to pay to the Commissioner a penalty if:

(a) after the due day, you became a director of the company and began to be under an obligation under section 269‑15; and

(b) 30 days later, you are still under that obligation.

(4) The penalty is due and payable at the end of that 30th day.

Note: The Commissioner must not commence proceedings to recover the penalty until the end of 21 days after the Commissioner gives you notice of the penalty under section 269‑25.

Amount of penalty

(5) The amount of a penalty under this section is equal to the unpaid amount of the company’s liability under its obligation.

Note 1: See section 269‑40 for the effect on your penalty of the company discharging its obligation, or of another director paying his or her penalty.

Note 2: See section 269‑45 for your rights of indemnity and contribution.

52. In my view therefore, the fact that the Commissioner’s opinion as to the extent of the liability of the defendant with respect to SGC changed after the service of the DPN on 28 April 2014, does not invalidate the proceedings. Notice having been given in respect of SGC, the only manner in which the defendant could address the notice was by paying the outstanding sum sought in the DPN. This did not occur, and any time after 21 days from the giving of the DPN, the Commissioner was entitled to commence proceedings. Those proceedings, once commenced, were capable of encompassing the full extent of the debt alleged to be owed by the taxpayer at the date of commencement of the proceedings, and was capable of amendment subject to the rules of the relevant Court.

53. It follows that I reject the Invalidity Submission.

Was Mr Snell Excluded from the Management of the Company’s Affairs?

54. A common element of several limbs of Mr Snell’s statutory defences is that he was “excluded from the management of the Company”. Accordingly, it may be helpful if I turn to that topic before further considering those defences.

55. The defendant seeks to characterise his involvement in the Company’s affairs from 2012, as one of having being “excluded” by Mr Ireland. I do not believe this is an apt description of what occurred. Indeed, the proposition that Mr Snell was excluded, is not sustained in his evidence in chief.

56. I am prepared to accept that the defendant found Mr Ireland decreasingly helpful in his dealing with him from 2012. I also accept that Mr Snell found it increasingly difficult to make contact with Mr Ireland in order to discuss the Company’s affairs. Nevertheless, he did succeed in contacting Mr Ireland, and he did discuss the Company’s affairs with him.

57. To give but two examples, Mr Snell came to know that on two occasions the Company owed substantial amounts to the Commissioner, and made arrangements to make payments clearing the tax liabilities (Affidavit of Mr Snell, dated 18 February 2019, paragraphs 78 and 100). In so doing, he dealt with the Company’s accountants, and with officers of the Commissioner on the Company’s behalf, in which process he sought to ascertain the correct position in relation to the Company’s fiscal obligations before he made payments.

58. Mr Snell also gave evidence that he came to an oral agreement with Mr Ireland that they would cease to do business together (Affidavit of Mr Snell, dated 18 February 2019, p 17-21). However, this was not as simple as an agreement as to disengagement from the Restaurant business. This was so, as the Restaurant was not the only business which was conducted jointly. There was also a boat charter business (the “Boat Business”). Mr Snell said that the oral agreement which he reached with Mr Ireland, involved Mr Ireland taking over the management of the Restaurant, and thereafter being solely responsible for the discharge of its liabilities, including its liabilities to the Commissioner. The oral agreement in turn provided that Mr Snell, for his part would do the same with respect to the Boat Business (Affidavit of Mr Snell, dated 18 February 2019, paragraph 116). He referred to this as the “Separation Agreement”.

59. I consider that the very act of negotiating the Separation Agreement is in itself an involvement in the Company’s affairs, inconsistent with him being excluded from them.

60. The joint enterprises of Messrs Snell and Ireland were not confined to the Restaurant and the Boat Business. The Company also had land in Queensland referred to in the proceedings as the “Garners Beach Land”. This land was apparently purchased for some $4.5 million. There was to be no separation agreement between Messrs Snell and Ireland in respect of the Garners Beach Land. This was to remain a Company asset. This led to a need for Mr Snell to remain as a director and shareholder of the Company. Accordingly and crucially, when negotiating and implementing the Separation Agreement, Mr Snell did not resign as a director. This was a thoroughly considered decision by him. In his affidavit sworn 18 February 2019, Mr Snell explained his decision making in the following way:

[136] By September 2013, I had lost complete confidence in Jim Ireland’s ability to manage the affairs of the Company. Therefore, to avoid leaving Jim Ireland in control of the Company’s assets without any oversight from me, I entered into the Separation Agreement rather than resign as a director of the Company. I did not consider that winding up the Company was an appropriate course of action.

[137] As discussed above, part of the Separation Agreement involved Jim Ireland transferring the assets of the Restaurant Business into a separate company. Therefore, by remaining a director, I believed that this would ensure that Jim Ireland would consult with me, particularly given that I would be required to sign all necessary sale documentation.

[138] Further, I could use my position as a director to encourage Jim Ireland to honour the obligations to the ATO and other creditors otherwise he would have had total management responsibility but without the absolute intent to meet his responsibilities.

[139] Since April 2008, the Company had owned a part interest in land at address, Lots 1 and 3 The Esplanade, Garners Beach, Queensland (Garners Beach). Garners Beach was bought for a purchase price of approximately $4.5 million.

[140] At Tab 26 of Exhibit KES-1 are true copies of title search statements dated 19 April 2016 in relation to Garners Beach.

[141] I considered that if I resigned as a director of the Company, I would lose the ability to have a say in the management of Garners Beach, a significant asset of the Company. Further, my resignation could leave Jim Ireland in control of the Garners Beach asset. This, in my mind was untenable given my loss of confidence in his ability to manage the affairs of the Company.

61. I do not see that this approach, commercially astute as it no doubt was, is compatible with the proposition that from 2012 onwards, Mr Snell was “excluded” from the affairs of the Company. It is in fact the opposite, being as it is, a decision to remain included in the Company’s affairs.

62. The proposition that Mr Snell was “excluded” from the affairs of the Company from 2012, together with the allied proposition that he was, after the date of the Separation Agreement, excluded from the affairs of the Company by consent, are both factually flawed. These propositions seek to conflate the management of the affairs of the Restaurant, with the management of the affairs of the Company. The proposition that they were one and the same, is quite incorrect.

63. While the evidence as to the corporate ownership of the Boat Business was opaque, the evidence with respect to the Garners Beach Land was not. It was owned by the Company, was apparently a valuable asset, and Mr Snell wished to keep his share of control over it. That is why he did not resign his directorship of the Company.

64. Thus, on no view of the facts did Mr Snell allow himself to be excluded from the management of the affairs of the Company. The highest that could potentially be said is that he was excluded from the management of the Restaurant. Even that, I find, did not occur.

The Statutory Defences

65. Section 269-35 is in the following terms:

269-35 Defences

Illness

(1) You are not liable to a penalty under this Division if, because of illness or for some other good reason, it would have been unreasonable to expect you to take part, and you did not take part, in the management of the company at any time when:

(a) you were a director of the company; and

(b) the directors were under the relevant obligations under subsection 269‑15(1).

All reasonable steps

(2) You are not liable to a penalty under this Division if:

(a) you took all reasonable steps to ensure that one of the following happened:

(i) the directors caused the company to comply with its obligation;

(ii) the directors caused an administrator of the company to be appointed under section 436A, 436B or 436C of the Corporations Act 2001;

(iii) the directors caused the company to begin to be wound up (within the meaning of that Act); or

(b) there were no reasonable steps you could have taken to ensure that any of those things happened.

(3) In determining what are reasonable steps for the purposes of subsection (2), have regard to:

(a) when, and for how long, you were a director and took part in the management of the company; and

(b) all other relevant circumstances.

Superannuation guarantee charge—reasonably arguable position

(3A) You are not liable to a penalty under this Division to the extent that the penalty resulted from the company treating the Superannuation Guarantee (Administration) Act 1992 as applying to a matter or identical matters in a particular way that was *reasonably arguable, if the company took reasonable care in connection with applying that Act to the matter or matters.

When you can rely on this section

(4) For the purposes of:

(a) proceedings in a court to recover from you a penalty payable under this Division; or

(b) proceedings in a court against you in relation to a right referred to in paragraph 269‑45(2)(b) (directors jointly and severally liable as guarantors);

subsection (1) or (2) of this section does not apply unless you prove the matters mentioned in that subsection.

(4A) For the purpose of the Commissioner recovering from you a penalty payable under this Division (other than as mentioned in subsection (4)), subsection (1) or (2) does not apply unless:

(a) you provide information to the Commissioner during the period of 60 days starting on the day the Commissioner:

(i) in the case of the Commissioner recovering the penalty under section 260‑5 (Commissioner may collect amounts from third party)—gives you a notice under subsection 260‑5(6) in relation to the penalty; or

(ii) otherwise—notifies you in writing that he or she has recovered any of the penalty; and

(b) the Commissioner is satisfied of the matters mentioned in subsection (1) or (2) of this section on the basis of that information.

Power of courts to grant relief

(5) Section 1318 of the Corporations Act 2001 does not apply to an obligation or liability of a director under this Division.

The Relevant Period

66. Mr Ipp submits that the relevant period for the statutory defences is between the Due Date in each case (as defined in the TAA) and the expiry of the DPNs issued by the Commissioner. The closing date for the period was said to arise from the decision of Handley JA in Canty v Deputy Commissioner of Taxation (2005) 63 NSWLR 152. This led to the submission that the relevant period in respect of both PAYG and SGC instalments, was the period of 30 June 2012 to 2 September 2014.

67. Ms Gatland, who appeared for the Commissioner, suggested that the range of dates was 30 June 2012 but ongoing.

68. The parties were in agreement that nothing turns on the differences between their views of the relevant period, a proposition with which I agree. I therefore proceed on the basis of the plaintiff’s formulation of the relevant period, as it is the most beneficial to him.

The Illness Defence

69. A cursory analysis of section 269 – 35 will show that it is difficult for a director to afford him or herself of its protection. To establish the defence, it must be established that, because of illness:

1. during the entire relevant period;

2. the director did not take part in the management of the company; and

3. it was unreasonable to expect the director to take such part.

70. While the evidence of Mr Snell’s illness is clear and uncontradicted, it cannot be said that at all times since 30 June 2012, he did not take part in the management of the Company. Earlier in these Reasons, I have dealt with instances of Mr Snell’s clear involvement in the management of the Company in the relevant period.

71. It will be recalled that Mr Snell did not choose to cease his involvement in the affairs of the Company. While he took steps, in an attempt to separate certain of his business interests from Mr Ireland’s, with a view to no longer being involved in the Restaurant business, he did not resign as a director of the Company. This, as I have indicated, was a considered commercial decision on his part.

72. Mr Snell also continued to stoically operate his other business during this time, albeit with some practical alterations to his business lifestyle, which would better accommodate his fluctuating health.

73. Thus, I do not see that it is arguable that he did not take part in the management of the Company during the relevant period; and in any event, his involvement in his other businesses over the period demonstrates that, to the extent to which it could be said that he did not take part in the management of the Company, it would not be unreasonable to expect him to do so.

The “Some Other Good Reason” Defence

74. In Deputy Commissioner of Taxation v Robertson (2009) 234 FLR 35 at 66-67 [102], Harrison J stated that the test for whether a reason for non-participation in the management of the company is “good”, is an objective one. It is not sufficient if the director had a genuine view that he or she had good reason for not participating, unless it were a “good reason” when viewed objectively. To be a “good” reason, it must not only be adequate, but “valid” and “sound”.

75. A “good reason” for non-participation was explained by His Honour in the following terms:

The reason advanced must objectively be a good reason. For example, a total failure to participate for whatever reason should not be regarded as a "good reason": DCT v Clark (supra). In determining what may be a good reason for not participating in the management of a company, regard must be had to the high standards of care and skill now required of directors. The plaintiff submitted that a director who by a course of conduct is inattentive to the affairs of the company is unlikely to have the benefit of this defence. For example, it would not be sufficient if the director held a genuine view that he or she had good reason for not participating unless it were a "good reason" when viewed objectively [102].

76. Non-participation, per se in the management of the company is impermissible: see Deputy Commissioner of Taxation v Clark (2003) 57 NSWLR 113 at 144.

77. The ability to rely on this type of defence has long been noted as being difficult. As stated by Brabazon J in Deputy Commissioner of Taxation v Stenner [2003] QDC 053:

[32] It is difficult for a director to escape liability. A director has to show that he or she took no part in the management of the company, and did not do so for some good reason. The fact that he or she was not immediately interested in the financial affairs of the company does not matter, because of the strict requirement of s 222AOJ(2). Mr Stenner Junior has no good reason.

78. Brabazon J then cited Heydon JA (as His Honour then was) who observed in respect of the predecessor provisions to section 269-35, in Deputy Commissioner of Taxation v Saunig (2002) 55 NSWLR 722 at 731 [29]:

There is a certain harshness in the speed of action which s 222AOB(1)(b)–(d) calls for because in the case of a company which cannot pay the deduction under par (a), the time allowed within which to arrive at an agreement with the Commissioner, appoint an administrator, or commence the winding up of the company is very short. The harshness was no doubt seen as appropriate, because the evils of tax payers deducting taxation payments from employees' wages and not passing them to the authorities are considerable and perhaps widespread. The evils are not limited to the tax avoided: they extend to the use made of the money, namely either theft or use as working capital, thereby permitting companies to continue to trade which in truth are not capable of continuing to trade lawfully. To adopt the language of Gzell J in Deputy Commissioner of Taxation v George (2002) 55 NSWLR 511 at 520 [33], an “early sign of problems in a company is its living on the false reserves of non-remitted” deductions from employees' wages. The harshness is to some extent ameliorated by the fact that the directors cannot be sued until a s 222AOE notice is served, and by the time it has been served and a further fourteen days have passed, the director will have had a period sufficient to procure the company to take one of the four steps referred to in s 222AOB(1). If one of the steps is taken, the director ceases to be liable. Harsh or not, however, the legislative scheme is in this respect clear. By the time the notice was issued in this case, Mr Saunig had had an ample period within which to take the s 222AOB(1) steps for the months before he was aware of the problem. However, he sought to answer that difficulty by contending that by then the other directors were not co-operating.

79. An agreement between directors cannot operate to override the statutory duties and obligations of a director. In the context of director obligations under the Corporations Act 2001 (Cth), a defence under section 588FGB(5), in identical terms, was raised by a director in DCT v Clark (2003) 57 NSWLR 113. In that case, which concerned the reliance by one director on the other director (who was also the husband of the first director), the Court determined:

there is no justification for a doctrine which would hold sleeping directors to be “de facto non-directors” who should be relieved of their liabilities … the conduct of such directors may never meet the requisite standard of participation in management, such conduct should not be excused as a “good reason”.

80. The choice not to participate in the affairs of the company is not considered as a “good reason” sufficient to base a defence reliant on section 269-35(1); Deputy Commissioner of Taxation v Lawson [2017] VSC 789 at [41] – [53]; Deputy Commissioner of Taxation v Holton [2016] VCC 516 at [50]. In Holton, for example, the defendant claimed that he had agreed to divide responsibilities with another director and that he had become shut out of the company after a certain date. Neither reason was considered as a “good reason” for the purposes of making good a defence in proceedings of this nature.

81. The defendant relies on the following:

1. the fact that he was excluded from the business; and

2. the Separation Agreement.

82. As I previously indicated, I do not accept that Mr Snell was in any relevant sense excluded from the business. As to the Separation Agreement, on the authorities to which I have referred, the Separation Agreement could not afford a “good reason”. Holton is but one example demonstrating this conclusion. In any event, as I have indicated, the proposition that the Separation Agreement resulted in Mr Snell, by arrangement, taking no further part in the management of the Company’s affairs, misstates its effect. The Separation Agreement, far from providing a “good reason” for non-participation in the Company’s affairs, was in fact an act which was inconsistent with Mr Snell no longer taking part in the management of the Company. As I have indicated, the manner in which the Separation Agreement was carried into effect, had precisely the opposite effect – Mr Snell decided to stay on as a director of the Company, and be involved in its management.

The “All Reasonable Steps” Defence

83. What is “reasonable” for the purposes of section 269–35(2) does not depend merely upon the actual knowledge of the director but involves an objective test. The director must prove that he or she took all steps which were reasonable, having regard to the circumstances of which the director, acting reasonably, knew or ought to have known: see Deputy Commissioner of Taxation v Saunig (2002) 55 NSWLR 722 at 730.

84. Heydon JA stated the following in Saunig at 730:

The better construction of s 222AOJ(3) is that the test is an objective one, corresponding to that of Scott LJ. There is nothing in any of the relevant sections suggesting that all that matters is the actual knowledge of the director or that a director who is ignorant of the law or of any fact of which he ought to know is in a better position than a director aware of the law and aware of facts which he found out. In other words, there is nothing in the legislation to displace the prima facie meaning of “reasonable” in s 222AOJ(3) which adoption of Scott LJ's approach would ascribe to it. Hence, on its true construction, s 222AOJ(3) gives a defence to a defendant to proceedings for the recovery of a penalty imposed by s 222AOC if the defendant proves that he or she took all steps which were reasonable, having regard to the circumstances of which the defendant, acting reasonably, knew or ought to have known, to ensure that the directors complied with s 222AOB(1).

85. In Miller v Deputy Commissioner of Taxation (1997) 26 ACSR 533 at 538; 98 ATC 4,059 (Mason P, Priestley JA and Beazley JA), it was held that to make out the defence under section 222API(3) of the Income Tax Assessment Act 1936 (Cth), it must be shown that in respect of each of the four options, none could have been taken. This approach was also adopted in Deputy Commissioner of Taxation v Solomon (2003) 199 ALR 325 at 335 per Gzell J (with whom Handley JA and Sheller JA agreed) in relation to a comparable provision in section 222AOJ(3).

86. In Roche v Deputy Commissioner of Taxation [2015] WASCA 196, the Western Australian Court of Appeal followed and applied Miller and Canty v Deputy Commissioner of Taxation (2005) 63 NSWLR 152. The Court said at [35]:

So, compliance with s 269-35(2)(a) requires the director to have taken all reasonable steps to ensure that one of the three alternative events specified happened. The taking by the director of 'all reasonable steps to ensure', within s 269-35(2)(a), requires that each of the alternative events be addressed, either on the basis of taking reasonable steps to ensure the event happened or declining to do anything about that particular event on the basis that there were no reasonable steps that the director could have taken to ensure that the event happened. See, generally, Miller v Deputy Commissioner of Taxation (1997) 98 ATC 4059, 4063 - 4064 (Mason P, Beazley JA agreeing).

87. The Court said at [40]:

To establish a defence under s 269-35(2), the appellant was required to prove that from the time he came under the obligation in s 269-15 he took all reasonable steps to ensure that one of the s 269-35(2)(a) events occurred or that there were no reasonable steps that he could have taken to ensure that any of those events happened.

88. See also: Shaw v Deputy Commissioner of Taxation; Rablin v Deputy Commissioner of Taxation (2016) 104 ATR 1; [2016] QCA 275.

89. Mr Snell submits that the “Reasonable Steps” defence should be considered in relation to two separate periods being:

1. the period between June 2012 and December 2013; and

2. the period between December 2013 and September 2014.

90. As to the first period, it is undisputed that Mr Snell made various payments to the Commissioner on behalf of the Company in respect of certain of its taxation obligations.

91. Mr Snell also points to the fact that he had made certain other payments to the Company for the purposes of the provision of working capital. This, he says, thereby freed up the Company’s funds to assist the Company to discharge its income taxation obligations. These payments were as follows:

Date	$ Amount	Transferor
9 August 2012	$15,000	Scientific Management Associates (Victoria) Pty Ltd
24 April 2013	$15,000	Scientific Management Associates (Victoria) Pty Ltd
23 May 2013	$45,000	Scientific Management Associates (Victoria) Pty Ltd

92. These payments, he contends, satisfy the “all reasonable steps” defence for the first period. I cannot accept this submission. All that can be said in respect of these payments is that Mr Snell took “some steps” towards ensuring that the Company met its liability to the Commissioner. In my view, the proposition that the making of the payments constituted the taking of all reasonable steps, is untenable. Some of the claims the subject of these proceedings, relate to both PAYG and SGC withheld in the period in which Mr Snell caused the payments to be made. There is no evidence that Mr Snell undertook any form of investigation of the Company’s financial position, to satisfy himself that, if the payments were made, the Company would thereafter be able to meet its commitments to the Commissioner. The very best that could be said for the payments, is that causing the payments to be made, constituted a step towards causing the Company to meet its commitments to the Commissioner.

93. On no view of it, could it be said that the making of the payments constituted the taking of all reasonable steps to achieve that outcome.

All Reasonable Steps in the Period of December 2013 to September 2014

94. In this period, Mr Snell relies on the Separation Agreement. He says that as a result of the entering into the Separation Agreement, Mr Ireland was thereafter responsible for the Company’s tax obligations.

95. I do not believe the Separation Agreement provides Mr Snell with any comfort in this regard. The highest point to which the Separation Agreement can rise for present purposes, is that as a part of it, Mr Snell accepted Mr Ireland’s assurances that the Company’s taxation obligations in relation to the Restaurant’s operations, would be met. I do not believe that on any view of it, could the entry into the Separation Agreement be accurately described as taking “all reasonable steps” to ensure the Company’s fiscal obligations to the Commissioner were met.

96. No evidence was led to support a contention that Mr Snell took all reasonable steps to cause an administrator to be appointed to the Company, or alternatively, for the Company to be wound up. Indeed, the evidence is that Mr Snell took no steps in that regard.

97. Mr Snell says in answer to this that there were “no reasonable steps” which he could have undertaken. I do not accept that this is the case. The hypothetical difficulties to which Mr Snell pointed in relation to obtaining the cooperation of Mr Ireland as his co-director and co-shareholder to convene the requisite meetings, and the asserted hypothetical difficulties in obtaining quora at those meetings, may or may not have eventuated. Mr Snell took no steps of any nature to commence the process of ascertaining whether it was possible to take the steps to cause the Company to enter administration or be wound up.

98. That there was no evidence of such steps, is readily explicable. Far from Mr Snell taking all reasonable steps to achieve the results mandated in section 269-35(2)(a)(ii) and (iii), he decided to do precisely the opposite. It is clear that Mr Snell made a commercial decision that it was better to use his continuing position as a director and shareholder, to encourage Mr Ireland to honour the Company’s tax obligations to the Commissioner, rather than to take the steps set forth in section 269 – (35)(2)(a)(ii) and (iii) (Affidavit of Mr Snell, dated 18 February 2019, paragraph 138).

99. He said at various stages that he did not wish to get Mr Ireland “offside” by antagonising him with threats of administration or winding up (T27.31-38). Further, he wished to protect the assets of the Company, being at least the Garners Beach Land, from the effects of corporate mismanagement by Mr Ireland. These were steps which he considered were only achievable by keeping the Company operating.

100. I thus reject the defendant’s statutory defences. It follows that the Commissioner is entitled to verdict and judgment, as sought.

101. I make the following Orders:

1. That there be Judgment and Verdict for the plaintiff in the sum of $33,811.76.

2. Interest thereon at the rates prescribed from time to time pursuant to Practice Note DC Civil No. 15.

3. That the defendant pay the plaintiff’s costs.

ANNEXURE TO JUDGMENT OF DEPUTY COMMISSIONER OF TAXATION v SNELL (2017/00131270 – 001)

Defendant’s Medical Chronology

Date	Event	Evidence Reference
13.04.12 – 17.04.12	Snell has severe gout	Ex D7, p 406-407 Affidavit of Mr Snell, dated 18 February 2019, paragraphs 192-193
18.04.12 – 8.05.12	Snell is prescribed Prednisolone (steroid medication) together with other regular medication to treat severe gout	Ex D7, p 407-408
05.06.12 – 05.09.12	Snell experiences ongoing angina symptoms, knee and ankle pain, and symptoms of heart failure	Ex D6, p 384 (4th paragraph)
01.07.12 – 15.08.12	Snell experiences ongoing symptoms of gout, peripheral oedema and paroxysmal nocturnal dyspnoea	Ex D7, p 408-410
06.08.12	Snell experiences chest pain	Ex D7, p 409 Affidavit of Mr Snell, dated 18 February 2019, paragraph 194
08.09.12 – 15.09.12	Snell suffers from chest infection	Ex D7, p 410-411
05.09.12	Snell sees Dr Eccleston (cardiologist)	Affidavit of Mr Snell, dated 18 February 2019, paragraph 194(b)
02.10.12	Snell is admitted to hospital with prolonged angina	Ex D7, p 423-425 Affidavit of Mr Snell, dated 18 February 2019, paragraph 194(c)
05.09.12 – 12.12.12	Snell is limited in activity Snell is prescribed medication for gout, high blood pressure, high cholesterol and peripheral oedema	Ex D6, p 384 Ex D7, p 411-412
20.03.13 – 31.03.13	Snell has a heart attack (Acute Coronary Syndrome) whilst in China and is hospitalised and is treated in hospital in Hong Kong	Affidavit of Mr Snell, dated 18 February 2019, paragraph 168 Ex D5, p 347-348 Affidavit of Mr Snell, dated 18 February 2019, paragraphs 195-197
01.04.13 – 09.04.13	Snell not yet deemed medically fit to fly home from China	Affidavit of Mr Snell, dated 18 February 2019, paragraph 174
10.04.13 – 10.05.13	Snell returns to Australia to recuperate	Ex D3, p 318 (paragraph 5) Affidavit of Mr Snell, dated 18 February 2019, paragraph 198-199
10.05.13	Snell prescribed medication for gout, angina, heart failure, peripheral oedema, heartburn, high cholesterol, high blood pressure and severe osteoarthritis.	Ex D7, p 413-414
19.05.13 – 09.06.13	Snell suffers from Respiratory Tract Infection	Ex D7, p 414 Affidavit of Mr Snell, dated 18 February 2019, paragraph 201
07.09.13 – 14.11.13	Snell has deteriorating kidney condition and high blood pressure	Ex D7, p 414-415 Affidavit of Mr Snell, dated 18 February 2019, paragraph 202
30.09.13	Dr Fred Vethanayagam refers Snell to Dr Gavin Carney (nephrologist)	Ex D7, p 432 Affidavit of Mr Snell, dated 18 February 2019, paragraph 202(b)
14.11.13 – 25.12.13	Snell is prescribed additional medication (Physiotens) to manage high blood pressure	Ex D7, p 415
26.12.13 – 22.02.14	Snell complains of discomfort and requests urgent consultation with nephrologist Snell visits his GP on four occasions Snell has symptoms of cardiac failure (peripheral oedema) Snell suffers from severe diarrhoea	Ex D7, p 433 – 434 Ex D7, p 416 Ex D4, p 331 Ex D7, p 439 (paragraph 2)
27.02.14	Snell is on medication for gout, angina, peripheral oedema, high blood pressure and diabetes.	Ex D7, p 435
27.02.14 – 14.05.14	Snell's condition is worsening	Ex D7, p 435 cf Ex D7, p 437 Affidavit of Mr Snell, dated 18 February 2019, paragraph 209
28.04.14	Snell is prescribed medication for gout, angina, heart failure, peripheral oedema, heartburn, diabetes, high cholesterol, high blood pressure and severe osteoarthritis	Ex D7, p 417
14.05.14 – 09.09.14	Snell suffers from severe back pain	Ex D7, p 437 (5th paragraph) Ex D7, p 417-418 Ex D7, p 449 (3rd paragraph)
04.06.14	Snell undergoes colonoscopy and endoscopy	Ex D7, p 440 Affidavit of Mr Snell, dated 18 February 2019, paragraph 210
24.06.14 – 08.07.14	Snell is hospitalised with oedema and ascites	Ex D4, p 331 Ex D7, p 417 Affidavit of Mr Snell, dated 18 February 2019, paragraph 211
09.07.14 – 30.09.14	Snell recovering from June/July hospitalisation Snell makes four visits to his GP, one to his cardiologist and one to his nephrologist	Ex D7, p 449 (3rd paragraph) Ex D7, p 417-419 Ex D6, p 384
19.08.14	Snell is experiencing moderate to severe back pain In addition to regular medications, Snell is prescribed Endone, additional fluid build up medication and calcium tablets	Ex D7, p 417-418 Affidavit of Mr Snell, dated 18 February 2019, paragraph 213-216

Decision last updated: 06 May 2019