Ferella v Chief Commissioner of State Revenue

[2020] NSWCATAD 327

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Ferella v Chief Commissioner of State Revenue [2020] NSWCATAD 327

Hearing dates:

On the papers

Date of orders:

24 December 2020

Decision date:

24 December 2020

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

S Goodman SC, Senior Member

Decision:

(1) The application to set aside or vary Tribunal decision filed by the applicants and dated 19 May 2020 is dismissed.

(2) The application in respect of the 2019 land tax year is to be listed for directions at the earliest opportunity.

Catchwords:

PRACTICE AND PROCEDURE – application to set aside decision – whether decision made in absence of party – whether absence resulted in party’s case not being adequately before the Tribunal – discretion

Legislation Cited:

Civil and Administrative Act 2013

Civil and Administrative Tribunal Regulation 2013

Taxation Administration Act 1996

Cases Cited:

AHB Trustees and Guardians [2014] NSWCA 40

Chief Commissioner of State Revenue v Paspaley [2008] NSWCA 187

Coomber v Moree Plains Shire Council (No 2) [2019] NSWCATAD 227

Ferella v Chief Commissioner of State Revenue [2020] NSWCATAD 128

Hammond v Ozzy’s Cheapest Cars Pty Ltd t/as Ozzy Car Sales [2015] NSWCATAP 65

Homeark Constructions v Hillside Excavations [2014] NSWCATAP 77

McErlane v Kelly [2015] NSWCATAP 93

Texts Cited:

None cited

Category:

Consequential orders

Parties:

G & N Ferella (Applicants)
Chief Commissioner of State Revenue (Respondent)

Representation:

Counsel:
O Berkmann (Applicants)
E Graham (Respondent)

Solicitors:
Crown Solicitor (Respondent)

File Number(s):

2019/00301452

Publication restriction:

Nil

REASONS FOR DECISION

Introduction

1. The applicants ask the Tribunal to exercise the discretion it has under cl 9 of the Civil and Administrative Tribunal Regulation 2013 (Regulation) to set aside part of a decision of the Tribunal, differently constituted, published as Ferella v Chief Commissioner of State Revenue [2020] NSWCATAD 128 (Decision).

2. In the Decision the Tribunal dismissed, under s 55 (1)(b) of the Civil and Administrative Act 2013 (NCAT Act), applications brought by the applicants for review of assessments issued in respect of the 2011 to 2018 land tax years inclusive. The basis of that dismissal was that the applications were lacking in substance because the Tribunal lacked jurisdiction.

3. The applicants seek to set aside or vary the Decision only insofar as it relates to the 2015 and 2016 land tax years.

4. For the reasons set out below the application is dismissed.

Materials before the Tribunal

5. The materials before the Tribunal on this application are:

1. an affidavit of Susai Benjamin, Senior Litigation Officer employed by the respondent, affirmed 19 December 2019;

2. an affidavit of Angelo Ferella (Mr Ferella), the son of the applicants, sworn 2 July 2020;

3. an affidavit of Ryan McGowan, solicitor of the Crown Solicitor’s Office affirmed 27 July 2020;

4. written submissions on behalf of the applicant in chief and reply;

5. written submissions on behalf of the respondent;

6. the Decision.

6. The parties indicated that they were content for the application to be determined on the papers. In any event, by dint of cl 9(8) of the Regulation and s 50(1)(d) of the NCAT Act, no hearing is required.

Findings of Fact

7. The following findings of fact are taken from the materials before the Tribunal.

8. The respondent issued a series of notices of assessment to land tax against the applicants over a number of years. It is convenient to summarise the relevant features of those notices of assessment and objections thereto, as per the following table:

Land Tax Year	Date of Notice of Assessment	Date of Objection	Date of determination of Objection
2011	21.1.11	6.12.11 or 14.5.19	21.3.12
2012	17.7.12	14.5.19
2013	17.1.13	14.5.19
2014	7.11.14	14.5.19
2015	21.3.16	3.5.16 or 14.5.19	15.6.16
2016	21.3.16	3.5.16 or 14.5.19	15.6.16
2017	12.1.17	14.5.19
2018	11.1.18	14.5.19
2019	5.2.19	4.4.19	26.7.19

9. Several points may be noted concerning the above table:

1. the date of objection for the 2015 and 2016 assessments is in dispute – the applicants contend that a letter they provided to the respondent dated 3 May 2016 with respect to the 2015 and 2016 assessments was (contrary to findings made in the Decision) not an objection and the only objections to those assessments were made on 14 May 2019. This is discussed further below;

2. the 15 June 2016 letter treated the 3 May 2016 letter as an objection and purported to disallow that objection;

3. there is no date of determination of objections for the 2012-2014 and 2017- 2018 assessments because the respondent has not made a determination on those objections, instead taking the position that those objections where outside the 60-day time limit for lodging an objection, the respondent had considered whether to accept the objections out of time but declined to do so.

10. On 21 March 2016, the respondent issued the 2015 and 2016 assessments.

11. On 3 May 2016, Mr Ferella, on behalf of the applicants, wrote to the respondent with respect to the 2015 and 2016 assessments. As noted above, there is an issue as to whether this letter constituted an objection to the 2015 and 2016 assessments.

12. On 15 June 2016, the respondent replied to the 3 May 2016 letter, referring to that letter as an objection, indicating that the objection had been disallowed and advising that the applicants could, within 60 days, seek a review by the Tribunal of the respondent’s decision to issue the Assessments. The applicants did not lodge such an application for review.

13. On 14 May 2019, the applicants lodged objections against the 2011 to 2019 assessments inclusive. The Decision records the following pertinent matters with respect to those objections:

33   All the documents purporting to object in relation to the land tax years 2011 to 2018 inclusive (Ex R1, SB-1, Tab 11) are dated 14 May 2019. They are on the March 2018 version of the Chief Commissioner’s standard form OSR 027C, ‘Objection to an Assessment or Decision’.

34   OSR 027C contains the following information on page 1:

Under section 89 of the Taxation Administration Act 1996, an objection must be lodged with the Chief Commissioner of State Revenue no later than sixty (60) days after the date of service of the notice of assessment or written decision.

If you are lodging your objection outside of this time, you must provide reasons for the delay.

Note: The Chief Commissioner of State Revenue is not obliged to accept your reasons and your objection may not be considered.

36   On page 2, the form says that if you answer ‘No’ to the question whether the objection has been lodged within the 60-day time limit:

… you must provide reasons for the delay with any relevant documentation in support of your reasons.

37   These are the reasons provided on behalf of the Applicants for the 2012 land tax year:

The Ferellas did not receive the 2012 Land Tax Assessment. An application for Exemption of Primary Production of land was lodged in December 2012, no reply has been received nor any determination of the Primary Production Activity. The Ferella properties were severed by the Official Trustee in Bankruptcy and removed from title to the properties, the titles since being restored mid 2018.

38   The reasons provided on behalf of the Applicants for the 2013, 2017 and 2018 land tax years were substantially the same, except that the references to ‘2012’ were instead references to ‘2013’, ‘2017’ and ‘2018’ respectively.

39   The reasons provided for the 2011, 2014, 2015 and 2016 land tax years were also substantially the same as those for 2012, with ‘2011’, ‘2014’, ‘2015’ and ‘2016’ respectively substituted for ‘2012’, and with the first sentence deleted – so that, in other words, the Applicants did not claim not to have received the notices of assessment for those years.

40   The papers filed with the Tribunal do not indicate that any documentation was provided to the Chief Commissioner to support the reasons for the delay in lodging the objections.

14. On 17 July 2019, the respondent wrote to the applicants. The effect of that letter was described in the Decision in the following terms:

8   The 17 July letter said:

•   The assessment for 2011 had already been dealt with by the Court of Appeal in 2014 (see above) and as a result the Applicants ‘cannot object against that assessment’;

•   The Applicants had already objected against the 2015 and 2016 assessments and those objections had been disallowed; the Applicants were told they ‘cannot object again against those assessments’; and

•   The objections against the assessments for 2012, 2013, 2014, 2017 and 2018 were outside the 60-day time limit for lodging an objection; the Chief Commissioner considered whether to accept the objections out of time but declined to do so.

15. On 26 September 2019, the applicants commenced the present proceedings with respect to the assessments for the land tax years 2011 to 2019 inclusive.

16. On 12 November 2019, the Tribunal:

1. for the 2019 land tax year granted an extension of time for the lodgement of the application for review;

2. for the 2011 to 2018 land tax years, ordered that the proceedings be listed for a “preliminary hearing on the jurisdictional issue” on 30 January 2020. The jurisdictional issue was whether the Tribunal had jurisdiction to hear the applications for review;

3. directed that evidence and submissions for the preliminary hearing be filed and served by 4 December 2019 (respondent) and 22 January 2020 (applicants).

17. On 19 December 2019, and following a request from the applicants which was consented to by the respondent, the Tribunal:

1. adjourned the preliminary hearing from 30 January 2020 until 27 February 2020;

2. extended the dates for filing of evidence and submissions to 20 December 2019 (respondent) and 24 February 2020 (applicants).

18. On 10 January 2020 the respondent filed and served:

1. the affidavit of Susai Benjamin affirmed 19 December 2019;

2. written submissions on the jurisdictional issues dated 10 January 2020.

19. On 18 February 2020, again at the request of the applicants and with consent of the respondent, the Tribunal:

1. adjourned the preliminary hearing from 27 February 2020 to 30 April 2020;

2. extended the date for the applicants to file their evidence and submissions to 23 April 2020.

20. On 27 March 2020, the Tribunal wrote to each of the parties indicating that in view of COVID-19 the Tribunal was implementing procedures to minimise in person hearings and seeking the parties’ views as to whether hearing could be conducted by telephone or on the papers.

21. On 30 March 2020:

1. Mr Ferella responded indicating that the applicants did not consent to the matter proceeding by telephone or on the papers and asking that the hearing be postponed until COVID-19 had been contained and personal appearances at the Tribunal were again possible;

2. the respondent made submissions to the Tribunal opposing any further adjournment and pressing for the hearing to proceed on 30 April 2020 as scheduled.

22. On 6 April 2020, Mr Ferella indicated that if the Tribunal were to go ahead with the hearing, he would request the vacation of the hearing date of 30 April 2020 and the provision of a new date at the end of July 2020.

23. On 8 April 2020, the Tribunal determined and notified the parties that the hearing on 30 April 2020 would proceed by telephone.

24. On 15 April 2020, Mr Ferella wrote to the Tribunal in the following terms:

I refer to my previous communication of 6 April 2020 in reply to your communication regarding the nature of proceeding to hearing by way of written submissions and or by telephone, further to should the hearing proceed the date of 30 April 2020 be vacated due to the disruptions regarding Coronavirus and I make further comment.

I am trying to engage alternate representation. Is it not appropriate that the hearing proceeding on 30 April 2020 the time remaining to brief Counsel and to provide a reply to the Respondents argument is inadequate and to be available for hearing 30 April 2020.

I am of the view your office in attending and not granting my request is Bias, your office has made no allowance with respect to the disruptions regarding Coronavirus of which the other court have, with respect what is the urgency.

I cannot proceed on 30 April 2020 should your office proceed to same in my absence.

With respect I will as of right file a application to set aside or vary a tribunal decision, please allow me the time that is required to vigorously defend same due to the disruptions of coronavirus.

I note substantial notice has been given to all parties concerned with respect to the request.

I respectfully request the date of 30 April be vacated and a new date of 4 June 2020 subject to availability of the Respondent and the Tribunal.

(emphasis added)

25. On the same day, the Tribunal wrote to the parties indicating that it had received an application for an adjournment of the hearing date and invited the parties to provide any evidence and submissions on that application, in response to which:

1. on 16 April 2020, the respondent provided submissions opposing the application for an adjournment;

2. the applicants did not provide any evidence or submissions.

26. On 17 April 2020, the Tribunal made the following order:

The request for an adjournment is refused.

Reasons:

The preliminary hearing on the jurisdiction issue remains listed to proceed on 30 April 2020. Any matters arising from the applicant’s email dated 15 April 2020 can be considered at that time, if necessary.

27. On 23 April 2020, being the date (as extended twice) for the applicants to file and serve their evidence and submissions, no evidence or submissions were filed by the applicants. Nor did they do so subsequently.

28. On 28 and 29 April 2020, there was correspondence to which Mr Ferella was an addressee concerning matters preparatory to the hearing on 30 April 2020.

29. On 30 April 2020, the telephone hearing commenced at approximately 10 am. By approximately 10.15 am, no-one had joined the telephone hearing on behalf of the applicants and the Tribunal directed the respondent’s solicitor, Mr McGowan to leave the hearing and attempt to contact Mr Ferella. Mr McGowan then called Mr Ferella using the number specified in the applicants’ application form filed with the Tribunal. There was no answer. Mr McGowan left a voice message indicating that the hearing was under way and asking that he call Mr McGowan on the number specified by Mr McGowan urgently.

30. Mr McGowan followed this at 10.25am with an email to Mr Ferella in which he asked Mr Ferella to dial into the telephone hearing as a matter of urgency and referred to the voice message that he had left at 10.15am. The email also included “Senior Member Frost has indicated this morning that he may consider your failure to dial in to the telephone hearing as an indication that you do not wish to be heard in respect of the preliminary hearing such that the determination on the issues raised will be heard in your absence”.

31. The events which occurred at the commencement of the hearing are recorded in the Decision at [15]-[17]:

The conduct of the preliminary hearing on 30 April 2020

15   Mr Ferella did not join the telephone hearing at 10:00 a.m. In attendance at that time were Ms Graham and Mr McGowan, counsel and solicitor respectively for the Chief Commissioner, and Mr Benjamin, one of the Chief Commissioner’s officers. Mr Ferella still had not joined by 10:10 a.m. At that point the Tribunal asked Mr McGowan to try to contact Mr Ferella by phone. The hearing was suspended to allow that to happen, with the hearing to resume at 10:30.

16 Upon resumption at 10:30 Mr McGowan reported that Mr Ferella had not answered the phone, the call had diverted to voicemail, Mr McGowan had left a message for Mr Ferella to call him, and he had not heard back from him. Mr McGowan also reported that he had sent an urgent email to Mr Ferella’s known email address, providing the telephone hearing details again, and notifying Mr Ferella that the hearing was adjourned until 10:30. I chose to proceed with the hearing, confident that by having Mr McGowan try to contact Mr Ferella and provide, once again, information on how to join the hearing, the Applicants had been given, through their representative, the ‘reasonable opportunity to be heard’ that is required to be given to them by s 38(5)(c) of the Civil and Administrative Tribunal Act 2013 (NCAT Act).

17   I informed Ms Graham that, if Mr Ferella did not join the call at any stage, I expected her during the telephone hearing not only to advocate her client’s position but to raise and respond to any arguments that she could identify that might assist the Applicants’ case. She readily agreed to that course, and I commend her for her willingness to assist the Tribunal in that way.

32. On 12 May 2020, the Decision was published. The Tribunal dealt separately with the applications in respect of 2012-2014 and 2017-2018 land tax years on the one hand and the 2015 and 2016 land tax years on the other. The Decision records:

The applications in respect of the 2012, 2013, 2014, 2017 and 2018 land tax years

42 For the Tribunal to have jurisdiction to undertake an administrative review of a decision of the Chief Commissioner, the impugned decision must have been ‘the subject of an objection under Division 1 [of Part 10]’: s 96(1) of the TAA. In respect of the 2012, 2013, 2014, 2017 and 2018 land tax years, the Chief Commissioner contends that the Tribunal lacks jurisdiction because no objection under Division 1 of Part 10 has been lodged against any of the land tax assessments.

43 It is certainly the case that the Applicants had not lodged objections against the assessments for any of these years before they lodged the various OSR 027C forms on or around 14 May 2019: Ex R1 at [8]. But the Chief Commissioner submits that lodging these forms did not amount to the lodgement of objections under Division 1 of Part 10 of the TAA, because they were lodged out of time and the Chief Commissioner did not permit the Applicants to lodge them late: s 90 of the TAA.

44   That submission is correct; a document that seeks to object against a decision of the Chief Commissioner is not an ‘objection’ for the purposes of s 86 or s 96 if it is lodged out of time and the Chief Commissioner declines to permit the taxpayer to lodge an objection late: Chief Commissioner of State Revenue v Paspaley [2008] NSWCA 184 at [37] (Basten JA, Giles and Campbell JJA agreeing). (In Paspaley the Court of Appeal held that such documents are not ‘objections’ ‘for the purposes of ss 86 or 97’ but the same conclusion must apply for s 96 (review by the Tribunal) as for s 97 (review by the Supreme Court) since the provisions are relevantly identical.)

45   The Court also explained in Paspaley at [27]:

Importantly, the review provided by s 97 (consistently with s 96) is limited to a decision “that has been the subject of an objection under Division 1”: s 97(1). Accordingly, a decision to which an objection cannot be taken, and a decision to which an objection has not been taken, will not fall within the scope of s 97 (providing a review by this Court), but will fall within the exclusion in s 103A (1).

46   The assessments for the land tax years 2012, 2013, 2014, 2017 and 2018 are decisions ‘to which an objection has not been taken’ because the forms lodged with the Chief Commissioner were out of time and permission to lodge late was refused. The assessments therefore do not fall within the scope of s 96 (the cognate provision to s 97) and the Applicants are therefore not entitled to apply to the Tribunal for an administrative review of those assessments.

47   In the alternative, it might be argued by the Applicants that their applications to the Tribunal are not applications to review the assessments for these years, but instead applications to review the decision to refuse them permission to lodge out-of-time objections to the assessments (the Extension of Time Refusal Decision). I raise this possibility for completeness, and in light of the opening words in section 3, ‘Grounds for Application’, of the application form lodged with the Tribunal on 26 September 2019:

The reasoning of the Respondents reply of 17.7.2019 in respect of the request made for further time to lodge the landtax (sic) objections out of time are erroneous and inaccurate with regard to the primary production activites (sic) conducted on the Box Hill land for the years 2012 to 2018.

48   The relevant content of the 17 July letter is as follows:

…

Your objections against assessments issued for 2012, 2013, 2014, 2017 and 2018 are outside the 60 day time period allowed by section 89 of the Taxation Administration Act 1996 (TAA) and are therefore invalid. The respective issue dates were 17 July 2012, 17 January 2013, 7 November 2014, 12 January 2017 and 11 January 2018. All such assessments were sent to 15 Chester St Blacktown NSW 2148, with the exception of the 2018 assessment which was sent to the address at the top of this letter.

You have requested an extension of time on the basis that the Ferellas did not receive the respective assessments and did not receive a reply to various applications for exemption.

Your request that the objections be accepted out of time has been considered and under section 90(3) of the TAA permission is hereby refused. As required by section 90(4) of the TAA the reasons are set out below.

…

49   Even if the applications to the Tribunal were to be characterised as applications to review the Extension of Time Refusal Decision for the relevant years, they would equally fail to attract the Tribunal’s jurisdiction.

50   It seems clear beyond argument that the Extension of Time Refusal Decision is an ‘other decision (within the meaning of the Administrative Decisions Review Act 1997 (ADR Act)) of the Chief Commissioner under a taxation law’ which is itself capable of being objected against: s 86(1)(b) of the TAA; see the definition of ‘decision’ in the ADR Act, s 6(1)(b): ‘… refusing to give a … permission’. In this regard, the Court of Appeal said in Paspaley at [30]:

Where the Chief Commissioner refuses permission to lodge an objection after the 60 day period, there seems to be no reason why a written objection may not be lodged with respect to that decision. If an objection were to be lodged, but rejected, there would appear to be statutory power to review the decision to refuse permission to lodge out of time an objection to an assessment. That would mean that a general review would be available under ss 96 or 97, a conclusion which would suggest strongly that such decisions were not to be treated differently for the purpose of the privative clause in s 103A from other decisions which might be subject of review.

51   That excerpt describes the pathway a taxpayer has to take in order to initiate an administrative review of a decision such as the Extension of Time Refusal Decision. Unless there has been an objection against the operative decision of the Chief Commissioner, and (except where s 96(1)(b) applies – which is not the case here) the Chief Commissioner has determined that objection, the operative decision cannot be reviewed by the Tribunal: Paspaley at [27]; see [45] above.

52   It follows that, irrespective of whether the applications to the Tribunal are characterised as applications to review the assessments, or applications to review the Extension of Time Refusal Decision for each year, the Tribunal does not have jurisdiction to consider the applications.

The applications in respect of the 2015 and 2016 land tax years

53   The next category of applications to consider comprises the applications in respect of the 2015 and 2016 land tax years.

54   The starting point is that the Applicants had previously objected against the assessments for these years on 3 May 2016: Ex R1 at [8](b); SB-1, Tab 10. Those objections were determined, adversely to the Applicants, on 15 June 2016, on the ground that the primary production exemption was not available: Ex R1 at [9](b); SB-1, Tab 14.

55 The Chief Commissioner’s determination of the objections on 15 June 2016 started the clock running under s 99(1) of the TAA. The Applicants had until 14 August 2016 to apply to the Tribunal for administrative review of the 2015 and 2016 assessments. They did not lodge an application with the Tribunal by that date; in fact, they appear to have done nothing about the 2015 and 2016 assessments until lodging what must be regarded as a second objection against each assessment on 14 May 2019. (I note here that ‘repeat’ objections against a specified decision of the Chief Commissioner, at least where the Chief Commissioner has already determined the first objection, are not contemplated by the legislative scheme, which gives taxpayers one chance, and one chance only, to contest a decision.)

56 In any event, and looking at the position through the lens of s 96(1)(a) of the TAA, the 2015 and 2016 assessments are decisions of the Chief Commissioner that have been the subject of an objection (lodged on 3 May 2016), the objections have been determined by the Chief Commissioner (on 15 June 2016), and the Applicants can be taken to be dissatisfied with the Chief Commissioner’s determination. As to this last point, the Applicants have not, in their application to the Tribunal, specifically expressed dissatisfaction with the Chief Commissioner’s determination of the objections in 2016; instead they have expressed dissatisfaction with the content of the 17 July letter, which includes rejection of the ‘second’ objections on the Chief Commissioner’s correct reasoning that second chances are not available under the legislative scheme. But at least in practical terms the Applicants can also be taken to be dissatisfied with the 15 June 2016 determination of the Chief Commissioner – a conclusion that can be drawn from the fact that they objected against the assessments (in 2016), and the determination of the objection was based on the same view of the facts as had underpinned the assessments in the first place.

57 Taking that view means that the applications to the Tribunal in respect of the 2015 and 2016 assessments are applications which should have been lodged by 14 August 2016 but were not lodged until 26 September 2019. They are over three years late. The question becomes whether an extension of time should be granted by the Tribunal under s 99(1) of the TAA.

58   The Chief Commissioner relies on the following reasoning of the Tribunal in Daoud v Chief Commissioner of State Revenue [2015] NSWCATAD 53 at [14]-[16]:

[14]   Accordingly, the discretion to extend time is broad and unfettered. However, it must be exercised judicially and having regard to s 36 of the Act and the need "to facilitate the just, quick and cheap resolution of the real issue in the proceedings".

[15]   The grant of an extension of time is not automatic. The discretion to extend time is given for the sole purpose of enabling the Tribunal to do justice between the parties. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time. It is also necessary to consider the prospects of the Applicants succeeding in their application. In order to justify the Tribunal extending the time, there must be some material upon which the Tribunal can exercise its discretion: see Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2] per McHugh J. and the authorities referred to therein. See also Opera Australia Ltd v Carr [1999] NSWADTAP 6 at [16] and Chand v Rail Corporation of New South Wales No 3 [2010] NSWADTAP 11 at [20].

[16]   Time limits are set to promote the orderly and efficient conduct of proceedings in the Tribunal, to provide certainty for the parties to proceedings, and to achieve finality in litigation. For these reasons, time limits should generally be strictly enforced unless the interests of justice require that the extension be granted.

59   The Chief Commissioner also refers to the decision of the Tribunal in D W Tolson Management Pty Ltd v Chief Commissioner of State Revenue [2016] NSWCATAD 113, where Senior Member Isenberg identified relevant considerations as including the length of the delay, the reason for the delay, the amount in dispute, the Applicant’s prospects of success, and the extent of prejudice that would be suffered by a respondent in the exercise of the discretion.

60   The Applicants’ position is decidedly weak. When the Chief Commissioner disallowed the objections in 2016, the Applicants were notified of their review rights: Ex R1, SB-1, Tab 14, p. 102. Indeed, they can be presumed to have been aware of those rights already, having exercised them after the disallowance of the objections for the 2007 to 2011 years by seeking review in the ADT (the forerunner to this Tribunal). That they did nothing, instead resting on their rights for over three years, does not present a strong case in their favour.

61   The length of the delay is significant, and the Applicants have not explained why they have delayed so long in making the application. In fact there is no material provided by the Applicants to support the application for a three-year extension of time. The Applicants were put on notice in early January that the Chief Commissioner was resisting any application for an extension of time, but nothing has been provided since Mr Ferella made the following statement in the application for review itself, lodged with the Tribunal on 26 September 2019:

I have not been well after having surgery for bilateral hernias, further I sustained a injury (sic) having fractured 2 ribs, now I am having to deal with the flu and have not been well for several weeks.

52   That is a statement about things that have happened in the recent past. The statement throws no light at all on what may have occurred during the period 15 June to 14 August 2016, the latter being the original due date for lodgement.

63   In the absence of any worthwhile information from the Applicants, a proper consideration of the factors mentioned in Daoud and D W Tolson ([53] and [54] above) is not possible. There is nothing before the Tribunal to warrant the grant of an extension of time for the Applicants to lodge their application for review in respect of the land tax assessments for 2015 and 2016. The extension of time is refused.

…

Summary

69   The applications for review in respect of the land tax years 2011 to 2018 inclusive cannot proceed.

70   Specifically:

(a)   In respect of the 2011 land tax year – the Applicants are precluded by ‘cause of action estoppel’ from contesting the assessment for a second time;

(b)   In respect of the 2012, 2013, 2014, 2017 and 2018 land tax years – the Applicants have failed to comply with the statutory scheme and the Tribunal therefore lacks jurisdiction to consider the applications;

(c) In respect of the 2015 and 2016 land tax years – the Tribunal declines to allow the Applicants to apply for an administrative review after the expiration of the 60-day period in s 99(1) of the TAA.

Decision

71 The most appropriate way to dispose of the applications is to dismiss the proceedings, to the extent that they relate to the land tax years 2011 to 2018 inclusive, under s 55(1)(b) of the NCAT Act.

72 I have come to that view after considering, in detail, each of the three categories of applications and determined that in each category the application is ‘lacking in substance’ for the purposes of s 55(1)(b).

73 For the avoidance of doubt, I note that dismissal under s 55(1)(c) of the NCAT Act might have been available once it became clear that there was no appearance at the preliminary hearing by or on behalf of the Applicants. If I had thought it appropriate to dismiss the applications under s 55(1)(c) I would have taken that action shortly after the resumption at 10:30. I did not think it appropriate, and so I declined to do so. Instead I chose to consider and determine the issues on the merits. I reached the firm conclusion that each application was lacking in substance, and that they should be dismissed under s 55(1)(b).

33. As part of the Decision, the Tribunal made an order, under s 55(1(b) of the NCAT Act dismissing the applications in respect of the 2011 to 2018 land tax years.

34. On or about 19 May 2020, the applicants filed the application presently under consideration. In that application Mr Ferella indicated that the ground on which the applicants wished the Decision to be set aside or varied was that the Decision had been made in his absence with the result that the applicants’ case had not been adequately put to the Tribunal.

35. In answer to the question on the application form: “Why were you absent when the Tribunal made the decision?”, Mr Ferella responded:

A request was made the hearing date of 30 April 2020 be vacated and a new date be given in June 2020, the applicant was not ready to proceed to hearing due to not being able to contact the families counsel. It was not until 5 May 2020 contact was made with counsel due to his own health issues in and out of Hospital and disruptions due to coronavirus. The first time I was made aware the proceedings went ahead on 30 April 2020 was on 11 May 2020 after I sent an email to the Registry and thereafter receiving a subsequent reply, substantial notice of 2 weeks was provided to the Tribunal and the Respondent. I was at the Doctors 30 April 2020 and unavailable. I have health issues, further to diagnosed with cancer and now gallbladder issues. I have not been well for some time having a sergical procedure in June 2019, I am to have further sergical procedures. I have my good days and bad days which prevents me from attending to any matter in a timely manner.

36. In answer to the question on the application form: “Describe in summary the case (evidence and arguments) you would have put to the Tribunal if you had not been absent”, Mr Ferella responded: “Not applicable, I was not able to obtain legal representation.”

37. The application was supported by a statutory declaration in which Mr Ferella declared that the information provided in the application was true and correct. It also attached a medical certificate dated 18 May 2020 which stated: “This is to certify that Mr Angelo Ferella was seen on 30/4/2020 with cholecystitis. He was unfit to work on 30/4/2020.”

Relevant provisions

Part 10 of the Taxation Administration Act 1996

38. The Decision contains a convenient summary of the provisions of Part 10 of the Taxation Administration Act 1996 (TAA), which is reproduced below:

The relevant legislation

20 Part 10 of the Taxation Administration Act 1996 (TAA) contains the relevant legislation. Division 1 (ss 86-95) deals with objections against decisions of the Chief Commissioner, including assessments; Division 2 (ss 96-103A) deals with the review of decisions by the Tribunal or by the Supreme Court.

21   A simplified summary of those provisions, as relevant to the current applications, is as follows:

(a)   A taxpayer who is dissatisfied with an assessment or other decision of the Chief Commissioner may lodge a written objection with the Chief Commissioner – s 86(1);

(b)   The grounds for the objection must be stated fully and in detail, and must be in writing – s 87(1);

(c)   On an objection, the objector has the onus of proving the objector’s case – s 88;

(d) An objection must be lodged with the Chief Commissioner not later than 60 days after the date of service of the notice of the assessment – s 89(1) – except as provided by s 90, as set out in detail below;

(e)   The Chief Commissioner must consider an objection and either allow the objection in whole or in part, or disallow the objection – s 91(1);

(f)   The Chief Commissioner must give notice to the objector of the determination of the objection – s 93(1);

(g) A taxpayer may apply to the Tribunal for an administrative review of a decision of the Chief Commissioner that has been the subject of an objection under Division 1 of Part 10 of the TAA if the taxpayer is dissatisfied with the Chief Commissioner’s determination of the objection – s 96(1)(a);

(h) An application for review following a determination by the Chief Commissioner of an objection must be made not later than 60 days after the date of issue of the notice of the Chief Commissioner’s determination of the objection, but the Tribunal may allow a person to apply for a review after that 60-day period – s 99(1);

(i) The Supreme Court and the Tribunal are the only bodies with jurisdiction to consider any question concerning an assessment or other decision of the Chief Commissioner under a taxation law – and even then, only in accordance with the procedures set out in Part 10 of the TAA – s 103A.

22 Section 90, noted as an exception to the general rule in s 89(1) as to the 60-day time limit for lodging objections, provides as follows:

90 Objections lodged out of time

(1)   The Chief Commissioner may permit a person to lodge an objection after the 60-day period.

(2)   The person seeking to so lodge the objection must state fully and in detail, and in writing, the circumstances concerning and the reasons for the failure to lodge the objection within the 60-day period.

(3)   The Chief Commissioner may grant permission unconditionally or subject to conditions or may refuse permission.

(4)   The Chief Commissioner must give notice to the person of the Chief Commissioner’s decision and include in the notice the reasons for refusing to grant permission or for imposing conditions of the permission.

(5)   The notice is to be in a form approved by the Chief Commissioner.

23   A few important points may be noted here.

24   First, and subject to the exceptional case in s 96(1)(b) (which is not relevant here), a person is not permitted to apply to the Tribunal for an administrative review of a decision of the Chief Commissioner unless the decision has first been objected against, and the objection has been determined.

25   Second, the obligation imposed on the Chief Commissioner by s 91(1) to consider and determine an objection lodged outside the 60-day time limit is not enlivened unless the Chief Commissioner permits the objection to be lodged late.

26   Third, an objection must be in writing and must state fully and in detail the grounds relied on by the taxpayer.

27   Fourth, an application to the Tribunal is itself subject to a 60-day time limit for lodgement, unless the Tribunal grants an extension of time.

28 Finally, the procedures under Part 10 of the TAA must be followed if a taxpayer wishes to contest an assessment or other decision of the Chief Commissioner.

Clause 9 of the Regulation

39. Clause 9 of the Regulation is in the following terms:

9 Additional power to set aside or vary decision determining proceedings

(1)   In addition to any power that is expressly conferred on the Tribunal by the Act or enabling legislation to set aside or vary its decisions, the Tribunal may order that a decision it has made that determines proceedings be set aside or varied in either of the following circumstances—

(a)   if all of the parties to the proceedings have consented to the making of the order to set aside or vary the decision,

(b)   if the decision was made in the absence of a party and the Tribunal is satisfied that the party’s absence has resulted in the party’s case not being adequately put to the Tribunal.

(2)   The Tribunal may make an order under this clause of its own motion or on the application of a party.

(3)   Unless the Tribunal grants an extension under section 41 of the Act, an application for an order under this clause must be made within 7 days after the decision concerned was made.

(4)   Except where the parties have consented to the making of the order, the Tribunal may not make an order under this clause unless the Tribunal has first—

(a)   afforded the parties an opportunity to make submissions about the proposed order, and

(b)   taken any such submissions into account.

(5)   A party may not make an application for an order under this clause to set aside or vary a decision of the Tribunal if—

(a)   an internal appeal or appeal to a court against the decision has been lodged or determined, or

(b)   an application for a judicial review of the decision has been made or determined.

(6)   A party may not, without the leave of the Tribunal, make an application for an order under this clause to set aside or vary a decision of the Tribunal if the party has previously made an application under this clause to have the decision set aside or varied.

(7)   If the Tribunal sets aside a decision under this clause, it may also set aside any orders that it made consequent on the decision that has been set aside.

(8)   Proceedings for the purposes of this clause are prescribed for the purposes of section 50 (1) (d) of the Act.

(9)   This clause does not limit any power of the Tribunal to set aside, revoke or vary its interlocutory decisions or any other decisions that do not operate to determine proceedings.

40. Regulation 9 provides the Tribunal with a discretion to set aside or vary a decision determining proceedings.

41. Absent the consent of all of the parties to such an order it is necessary for a party seeking such an order to prove two jurisdictional facts before the discretion will be enlivened.

42. The first is that the decision was made in the absence of that party. The second is that the party’s absence has resulted in that party’s case not being adequately put to the Tribunal.

43. These jurisdictional facts and the exercise of the discretion are considered, in turn, below.

First jurisdictional fact

44. The first jurisdictional fact to be established is that the decision was made in the absence of the applicants. This is common ground and need not be considered further.

Second jurisdictional fact

45. The second jurisdictional fact to be established is that the absence of the applicants has resulted in their case not being adequately put to the Tribunal.

Applicants’ submissions

46. The applicants’ submissions may be summarised as follows: had the applicants been represented at the hearing, the following arguments could have been made:

1. the 3 May 2016 letter was not in fact an objection to the 2015 and 2016 assessments for various reasons; thus, the 17 July 2016 letter was not a determination of an objection; and there has been no objection decision for the 2015 and 2016 land tax years;

2. the 14 May 2019 objections were objections for those years;

3. alternatively, if the 3 May 2016 letter was an objection, the applicants have arguably sought to object to the assessments for all years and not just 2015 and 2016 (the significance of this is not apparent from the applicants’ submissions).

Respondent’s submissions

47. The respondent’s submissions may be summarised as follows: it was not the absence of the applicants or their representative that resulted in their case not being adequately put to the Tribunal, but rather the acts and omissions of the applicants through Mr Ferella in circumstances where:

1. the applicants were given numerous opportunities to provide written submissions and evidence to the Tribunal but did not do so, including non-compliance with the directions made;

2. Mr Ferella was well aware of the hearing and chose not to attend;

3. the applicants did not engage counsel to attend the hearing;

4. there is no evidence that Mr Ferella had made the doctor’s appointment prior to 30 April 2020 and that was not the basis upon which Mr Ferella sought an adjournment on 15 April 2020;

5. the applicants chose not to engage any legal representation to appear on their behalf on 30 April 2020.

Consideration

48. I am not satisfied that the absence of the applicants from the hearing was the cause of their case not being presented adequately to the Tribunal, for the reasons which follow.

49. It is clear that no evidence or submissions on behalf of the applicants were before the Tribunal, and that the applicants have on this application formulated a case based on the proposition that the 3 May 2016 letter was not an objection but the 14 May 2019 objections were objections (the applicants’ case) that might have been put before the Tribunal. However, this is insufficient for the following reasons.

50. First, I am not satisfied that the applicants’ case would have been put to the Tribunal on 30 April 2020 if the applicants had been present. As an Appeal Panel held in McErlane v Kelly [2015] NSWCATAP 93 at [41]:

In respect of Regulation 9(1)(b), the Appeal Panel finds that in order to determine whether or not the appellant’s case has not been adequately put by reason of his absence, is one which the Appeal Panel finds is not based on guesswork or speculation, but on the consideration of evidence to be lead as to what material would have been lead, had, in this case the appellant, been present at the hearing. It requires at the very least, an explanation supported by evidence, as why the appellant’s case was not adequately put by reason of his absence. That is, there must be a causal relationship between the absence and any resulting inadequacy in the presentation of the case (emphasis added)

51. There is no evidence that such a case had been formulated by the hearing date of 30 April 2020. Further, there is evidence to the contrary. As noted above, on 19 May 2020 in answer to the question on the application form: “Describe in summary the case (evidence and arguments) you would have put to the Tribunal if you had not been absent”, Mr Ferella responded: “Not applicable, I was not able to obtain legal representation.”

52. Secondly, in any event (assuming, contrary to the finding above, that the applicants’ case had been formulated as at the date of the hearing) the absence of the applicants from the hearing was not the cause of any applicants’ case not being put. The true causes were:

1. the failure of the applicants to put on evidence and submissions despite numerous opportunities to do so. The initial order, made on 12 November 2019 for the filing of such material by 22 January 2020, was extended at the request of Mr Ferella twice, initially to 24 February 2020 and later to 23 April 2020. The applicants were also apprised of the respondent’s evidence and submissions from 13 January 2020;

2. the failure of the applicants to be represented at the hearing. The proceeding was commenced on 26 September 2019, over 6 months before 30 April 2020. Whilst Mr Ferella referred in correspondence to having difficulty in contacting particular counsel and on 15 April 2020 mentioned that he was trying to arrange alternative counsel, no explanation has been proffered as to why the applicants were unable to retain counsel (whether in particular or generally) for the 30 April hearing for a proceeding which they commenced on 26 September 2019. Similarly, there is no adequate explanation for Mr Ferella’s failure to attend the hearing, in circumstances where there can be no doubt that he was well aware of it. He has tendered a medical certificate, dated 18 May 2020 which states ‘This is to certify that Mr Angelo Ferella was seen on 30/4/2020 with cholecystitis. He was unfit to work on 30/4/2020’. Such evidence is formulaic and unsatisfactory: see AHB Trustees and Guardians [2014] NSWCA 40 at [4] – [5]; Homeark Constructions v Hillside Excavations [2014] NSWCATAP 77 at [48]. There is also no evidence as to the time of this appointment, or when it was made. Further, such an appointment was not referred to as a basis upon which the adjournment was sought in Mr Ferella’s 15 April 2020 email. I infer that the appointment was set at a time at which Mr Ferella was aware of the hearing date and most likely after his 15 April 2020 email;

3. the decision of Mr Ferrara not to attend the hearing. I reach this conclusion on the basis of Mr Ferella’s 15 April 2020 email in which he stated that if an adjournment was not granted he would apply to have Tribunal’s decision set aside and in which he made no reference to being unable to attend on 30 April 2020 or to having a medical appointment scheduled for that day;

4. as part of (3), the failure to attend on 30 April 2020 and make an application for an adjournment on that day, in accordance with the reasons given by the Tribunal on 17 April 2020, namely:

The preliminary hearing on the jurisdiction issue remains listed to proceed on 30 April 2020. Any matters arising from the applicant’s email dated 15 April 2020 can be considered at that time, if necessary.

53. For the reasons set out above, the second jurisdictional fact has not been established and thus the Tribunal is not empowered to exercise the discretion.

Exercise of the discretion

54. In any event, it would not have been appropriate to set aside the Decision with respect to the 2015 and 2016 assessments, for the reasons set out below.

Applicants’ submissions

55. The applicant submitted that the Tribunal should set aside the Decision with respect to the 2015 and 2016 assessments because:

1. Mr Ferella’s absence was explained by the medical certificate and is a reasonable explanation;

2. whilst the Tribunal provided the applicants with a reasonable opportunity to be heard, that is only one factor to be considered;

3. the applicants have an arguable case for a different decision, namely the applicants’ case;

4. if the Decision were set aside in part, the respondent would not suffer prejudice as the land tax is recoverable regardless of whether there is an application for review pending;

5. there is a real likelihood of an injustice if the Decision were allowed to stand because the applicants would not be able to obtain administrative review under s 99(1) of the TAA and would not have the opportunity to argue that s 99(1) is a remedial provision which should be construed beneficially in favour of the applicants, relying upon Gesner v Chief Commissioner of State Revenue [2006] NSWADT 26 and Pharmacare Laboratories Pty Ltd vGesner v Chief Commissioner of State Revenue [2009] NSWADT 128, which appear not to have been considered by the Tribunal for the purposes of the Decision.

Respondent’s submissions

56. The respondent submitted that the Decision should not be set aside because:

1. the applicants were well aware of the hearing date, were given ample opportunity to present their case (including the applicants’ case as now formulated) and should not be allowed to present a new case, being the applicants’ case, now;

2. there is no evidence as to the identity of the counsel who was said to be unavailable or why that person could not provide written submissions or communicate with the Tribunal to explain any application for an adjournment on 30 April 2020;

3. the evidence does not allow an inference to be drawn that Mr Ferella was prevented from appearing by a medical condition, particularly when his email dated 15 April 2020 suggested that if his adjournment application was unsuccessful he would simply not attend and would seek to set aside the Decision;

4. the Decision at [17] suggests that the Tribunal rigorously tested the respondent’s case for dismissal and considered arguments that might have been put by the applicants had they appeared, including the characterisation of the 3 May 2016 letter and the 14 May 2019 objections;

5. as to Gessner and Pharmacare Laboratories:

1. the delay in Gessner was nine months, not years as in the present case;

2. the principles espoused in those cases – that an extension of time should not be lightly refused where the applicants have an arguable case – were considered by the Tribunal, as is evident from the Decision at [60]-[63];

6. it would be pointless to set aside the Decision and there can be no injustice in letting it stand in circumstances where if the only objections were the 14 May 2019 objections, the applications concerning the 2015 and 2016 assessments would suffer the same fate, and for the same reasons, as the 2012-2014 and 2017-2018 assessments;

7. to the extent that the applicants wish to pursue review under s 99(1) of the TAA, they have not provided any evidence to explain the delay in objecting to the Assessments, or why the application for review of the disallowance of objection in 2019 was filed after the 60 day period for doing so;

8. the applicants have not explained what arguable substantive case they have concerning the Assessments.

Applicants’ submissions in reply

57. In reply, the applicants submitted that:

1. as to the submission that the applicants’ case is new, the applicants are not limited to the grounds of objection (s 100(2) of the TAA) and the 3 May 2016 letter can be taken into account, particularly in order to facilitate the just, quick and cheap resolution of the real issues in dispute;

2. there is evidence of the reasons for delay in:

1. the 17 September 2019 application for review which referred to the applicants having been removed from the title to the land by the Official Trustee in Bankruptcy;

2. the Statutory Declaration made by Mr Ferella which confirmed the truth of his assertions that the applicants had experienced issues with counsel and that Mr Ferella had health issues

3. the delay in Pharmacare, in which the taxpayer obtained an extension of time, was just shy of two years;

4. although the applications with respect to the 2015 and 2016 land tax years may ultimately be dismissed if the 3 May 2016 letter was not an objection, ‘there is still a real likelihood of injustice on the basis that the classification of the 3 May 2016 letter manifests review options available to the applicants to further dispute these years’.

Consideration

58. In Hammond v Ozzy’s Cheapest Cars Pty Ltd t/as Ozzy Car Sales [2015] NSWCATAP 65 an Appeal Panel set out the principles relevant to the exercise of the discretion, in the following terms:

76   The discretion conferred by cl 9(1)(b) is unfettered by any express requirements of that clause but it must be exercised having regard to the statutory context in which the Tribunal operates. In particular, when applying cl 9(1)(b), the Tribunal must seek to give effect to the guiding principle referred to in s 36(1) of the Act: see, for example, Homeark Constructions v Hillside Excavations [2014] NSWCATAP 77 at [38]. Section 36 provides in part:

36   Guiding principle to be applied to practice and procedure

(1)   The guiding principle for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

(2)   The Tribunal must seek to give effect to the guiding principle when it:

(a)   exercises any power given to it by this Act or the procedural rules, or

(b)   interprets any provision of this Act or the procedural rules.

77   The central question in exercising the discretion is whether there is a real likelihood that it would be unjust to let the decision sought to be set aside stand. If so, it should be set aside on such terms as will minimise the possibility of injustice to the party which had obtained the original decision in its favour. See, for example, CMT [2014] NSWCATGD 11 at [67] and [68(e)]; Northey v Bega Valley Shire Council [2012] NSWCA 28 at [16]; Vacuum Oil Co Pty Ltd v Stockdale (1942) 42 SR NSW 239 at 243-4 – these latter two cases are both authorities dealing with r 36.16(2)(b) in the Uniform Civil Procedure Rules 2005 (NSW), or its predecessor, equivalent to cl 9(1)(b).

78   Justice generally requires that parties against whom orders are made must be given a reasonable opportunity of appearing and presenting their case: Cameron v Cole (1944) 68 CLR 571 at 589. In the Tribunal, s 38(5)(c) of the Act provides:

(5)   The Tribunal is to take such measures as are reasonably practicable:

…

(c)   to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings.

78   If a party has been given such an opportunity, however, and has deliberately not taken it, there may well be no relevant injustice if the decision is allowed to stand see, for example, CMT [2014] NSWCATGD 11 at [68(a)]. In this regard, the issue of why the party was absent from the hearing may be very significant: see, for example, Homeark Constructions v Hillside Excavations [2014] NSWCATAP 77 at [37], [39] and [40].

79   Injustice will only be likely to result if the party seeking to set aside the decision has an arguable defence or an arguable case that a different decision could have been reached. If not, setting aside the decision would be futile. See, in a different but related context, Kyriakou v Long [2013] NSWSC 1890 at [33] and [55], approved on appeal in Kyriakou v Long [2014] NSWCA 308 at [18]. Section 38(4) of the Act is consistent with this approach, in that it requires the Tribunal to act according to the substantial merits of the case without regard to technicalities or legal forms.

80   In summary, when exercising the discretion conferred by cl 9(1)(b), the Tribunal should direct its attention to whether there would be a real likelihood of injustice if the decision was allowed to stand. Relevant considerations will generally include:

(1)   Why the party was absent and whether the absent party had a reasonable opportunity to be heard or otherwise have its submissions considered in the proceedings; and

(2)   Whether the absent party has an arguable defence or an arguable case that a different decision could have been reached.

81   Setting aside a decision will naturally involve a degree of prejudice to the party which was initially successful. As part of the exercise of the discretion, the Tribunal should also consider how that prejudice can be cured or reduced, for example by the framing of any set aside order or by the imposition of suitable conditions on that order. Conditional orders can be made in the Tribunal under s 58 of the Act.

59. Thus, the discretion is broad but must be exercised with respect to its statutory context, including the obligations upon the Tribunal to afford procedural fairness and upon parties to abide directions made by the Tribunal. In this regard the following passage from a decision of the Appeal Panel in Homeark Constructions v Hillside Excavations [2014] NSWCATAP 77 is apposite:

37 Where a party's absence has resulted in that party's case not being adequately put, the Tribunal has a discretion whether or not to set aside the decision. As pointed out in CMT [2014] NSWCATGD 11 at [65] and following, this will require consideration of:

(a)   why the party was absent from the hearing; and

(b)   whether the party's presence may have resulted in a different outcome.

38   Also relevant to the exercise of this discretion is:

(a)   the operation of the guiding principle provided in section 36(1) of the Act, namely the obligation of the Tribunal to facilitate the just, quick and cheap resolution of the real issues in the proceedings;

(b)   the obligation of the Tribunal in interpreting the Act to give effect to the guiding principle is provided in section 36 (2) of the Act; and

(c)   the duty of each of the parties and their representatives "to co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal": see section 36 (3) of the Act);

(d)   A party is obliged to comply with directions of the Tribunal.

39   The Tribunal is obliged to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings: see section 38 (5) (c) of the Act. However, where a party is absent from a hearing and:

(a)   the obligations of the Tribunal under the Act have been met;

(b)   the parties have been directed to file and serve their evidence prior to the hearing and have failed to do so;

(c)   a hearing has been conducted after appropriate notice to the parties; and

(d)   it is the failure to file and serve evidence which is the cause of the case not being put before the Tribunal,

a party seeking to be excused from their failure to participate on a timely basis in the resolution process, including in complying with the Tribunal's directions, is required to provide an adequate explanation: see eg Aon Risk Management Services Australia Limited v Australian National University (2009) 235 CLR 175 at [103].

40   Where a party fails to comply with directions and provide to the Tribunal evidence at a time required before the hearing, the mere fact of absence from the hearing will not entitle the defaulting party to have orders set aside under Regulation 9. Without an adequate explanation and consistent with the Tribunal's obligations under section 36 of the Act, the proper administration of justice would ordinarily mean that such an application to set aside a decision should be dismissed. This is because:

(i)   The absence of the party is not the cause of that party's case not being adequately put; and

(ii)   To allow a defaulting party to avoid the consequences of its default and to order a rehearing would work an injustice or disadvantage to the other party and prevent the Tribunal from bringing proceedings to a conclusion.

60. In Coomber v Moree Plains Shire Council(No 2) [2019] NSWCATAD 227 at [27], the Tribunal stated:

Even if the legislative requirements for granting the application are satisfied, the Tribunal has a discretion whether or not to set aside the Tribunal's decision. It is not mandatory to do so: Hammond v Ozzy's Cheapest Cars Pty Ltd t/as Ozzy Car Sales [2015] NSWCATAP 65 at [74]-[80]. In exercising that discretion, the central question is whether there is a real likelihood that it would be unjust to let the decision stand, and that would only be likely to result if the party has an arguable defence or arguable case that a different decision could have been reached. Relevant considerations are why the party was absent, and whether the party had a reasonable opportunity to be heard or have their submissions considered, and whether the absent party has an arguable defence or case that a different decision could have been reached.

61. I would have declined to set aside the Decision with respect to the 2015 and 2016 assessments for the following reasons.

62. First, I am not satisfied that if the applicants’ case had been run that a different result could have been reached. On this hypothesis:

1. the 2015 and 2016 assessments were issued on 21 March 2016;

2. the 60-day period for objecting to those assessments under s 89 of the TAA expired in May 2016;

3. it would thus be necessary for the respondent to lodge a late objection, which requires the permission of the respondent under s 90 of the TAA;

4. unless the respondent provides permission for the late lodgement of an objection, there is no objection for consideration and no obligation upon the Commissioner to consider it. A document such as the 14 May 2019 objections which purports to be an objection and which is lodged out of time is not an objection absent permission: see Chief Commissioner of State Revenue v Paspaley [2008] NSWCA 187 at [37]; Decision at [43]-[45];

5. the respondent has not given permission to lodge the objections to the 2015 and 2016 assessments out of time. In this regard, the 17 July 2019 letter did not expressly refuse permission (because that letter treated those assessments as having been the subject of objection on 3 May 2016 and determination on 15 June 2016), but there is no reason to expect that the respondent would give such permission when permission has been refused in similar circumstances in respect of the objections to the 2012 - 2014 and 2017 - 2018 assessments;

6. if there is no objection for consideration, there cannot be a determination of an objection or the passage of time since the service of an objection for the purposes of s 96 (1) of the TAA and thus the Tribunal does not have jurisdiction.

63. In other words, if the objections to the 2015 and 2016 assessments were made only on 14 May 2019, then they would suffer the same fate as the 2012-2014 and 2017-2018 assessments and the Tribunal would not have jurisdiction, as to which see the Decision at [42] to [47].

64. Further and for completeness, if an alternative argument, along the lines of that formulated by the Tribunal at [47] of the Decision for the 2012-2014 and 2017-2018 assessments, namely that the applications to the Tribunal insofar as they relate to the 2015 and 2016 assessments should be treated as applications for review of the decisions not to permit objections to the 2015 and 2016 assessments to be lodged out of time, were to be advanced, it would fail for the reasons set out at [47] to [51] of the Decision and in particular the absence of objections to decisions not to extend time would have the consequence that the Tribunal lacked jurisdiction.

65. Secondly, it would not be unjust to let the Decision stand in circumstances where, for the reasons discussed above, the applicants were given an ample opportunity to make their case, have deliberately not taken it and have provided no satisfactory explanation for their failure to appear see McErlane at [78]; Homeark at [38]-[40].

Orders

66. The Tribunal makes the following orders:

1. The application to set aside or vary Tribunal decision filed by the applicants and dated 19 May 2020 is dismissed.

2. The application in respect of the 2019 land tax year is to be listed for directions at the earliest opportunity.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 24 December 2020