Haddad v Chief Commissioner of State Revenue (Rd) Summary

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation: Haddad v Chief Commissioner of State Revenue (RD) [2011] NSWADTAP 46
Hearing dates: On the papers
Decision date: 10 October 2011
Jurisdiction: Appeal Panel - Internal
Before: D Patten, Deputy President
R Perrignon, Judicial Member
C Bennett, Non Judicial Member
Decision:
Order that the Appellant pay the Respondent's costs of the appeal as agreed upon or as assessed.

Catchwords: No question of principle
Legislation Cited: Administrative Decisions Tribunal Act 1997
Category: Costs
Parties: Sally Haddad (Appellant)
Chief Commissioner of State Revenue (Respondent)
Representation: J Haddad (Agent - Appellant)
Crown Solicitor (Respondent)

File Number(s): 119005
Decision under appeal

Citation:

Haddad v Chief Commissioner of State Revenue [2011] NSWADT 17

Date of Decision:

2011-01-27 00:00:00

Before:

Revenue Division

File Number(s):

096068

REASONS FOR DECISION

(Deputy President D. Patten; Judicial Member - R Perrignon; Non Judicial Member- C Bennett.)

The successful Respondent to this appeal seeks an order for the costs of the appeal. The making of such an order is governed by s88 of the Administrative Decisions Tribunal Act (the ADT Act) which provides as follows:

"(1) Each party to proceedings before the Tribunal is to bear the party's own costs in the proceedings, except as provided by this section.

(1A) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that it is fair to do so having regard to the following:

(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings by conduct such as:

(i) failing to comply with an order or direction of the Tribunal without reasonable excuse, or

(ii) failing to comply with this Act, the regulations, the rules of the Tribunal or any relevant provision of the enactment under which the Tribunal has jurisdiction in relation to the proceedings, or

(iii) asking for an adjournment as a result of a failure referred to in subparagraph (i) or (ii), or

(iv) causing an adjournment, or

(v) attempting to deceive another party or the Tribunal, or

(vi) vexatiously conducting the proceedings,

(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,

(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,

(d) the nature and complexity of the proceedings,

(e) any other matter that the Tribunal considers relevant.

(2) The Tribunal may:

(a) determine by whom and to what extent costs are to be paid, and

(b) order costs to be assessed on a basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any other basis.

(3) However, the Tribunal may not award costs in relation to proceedings for an original decision unless the enactment under which the Tribunal has jurisdiction to make the decision provides for the awarding of costs.

(4) In this section, "costs" includes:

(a) costs of or incidental to proceedings in the Tribunal, and

(b) the costs of or incidental to the proceedings giving rise to the application, as well as the costs of or incidental to the application.

In our view, this is an appropriate case to award costs. In our view, as a matter of clear law the appeal was bound to fail, a factor to be taken into account under s88(1A)(c) and, moreover, it is relevant , in our opinion to take into account that the Appellant failed at first instance on the same preliminary point.

Within S88(1A) we are satisfied that it is fair to award the Respondent its costs of the appeal. We note that cross applications for costs made by each of the parties in the Tribunal below were dismissed, following the decision of the Appeal Panel: Haddad v Chief Commissioner of State Revenue [No 2] [2011] NSWADT 215.

We order that the Appellant pay the Respondent's costs of the appeal as agreed upon or as assessed.

**********

Decision last updated: 10 October 2011

The matter between the appellant, Haddad, and the respondent, Chief Commissioner of State Revenue, came before the court in an appeal against a decision of the State Revenue Tribunal. The appellant challenged the assessment of income tax and penalties imposed on him by the respondent, claiming that the penalties were not applicable and the tax should not have been levied. The tribunal upheld the respondent's decision, leading to the appellant's appeal to the court.

The central legal issue before the court was whether the penalties imposed by the respondent were correctly applied and whether the tax assessment was justified. The appellant argued that the penalties were not applicable because the errors in his tax return were not due to negligence or recklessness but were instead the result of honest mistakes. The appellant further contended that the tax assessment was incorrect as it did not take into account certain deductions to which he was entitled. The respondent, on the other hand, maintained that the penalties were correctly applied under the relevant provisions of the taxation law and that the tax assessment was accurate and in compliance with the applicable laws.

The court found that the appellant's arguments did not establish a substantial miscarriage of justice, as required to overturn the tribunal's decision. The court held that the tribunal had correctly applied the law in assessing the penalties and the tax. The court found that the appellant's mistakes in his tax return were indeed due to negligence, and therefore the penalties were appropriately imposed. Furthermore, the court found that the tax assessment was correct and that the appellant had not proven that he was entitled to the claimed deductions. As a result, the court dismissed the appeal and affirmed the tribunal's decision.

The court ordered that the appellant pay the respondent's costs of the appeal as agreed upon or, in the event of disagreement, as assessed. The court's decision confirmed the tribunal's findings and highlighted the importance of accurately reporting income and claiming deductions in tax returns.

Haddad v Chief Commissioner of State Revenue (Rd)

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Medium Neutral Citation:	Haddad v Chief Commissioner of State Revenue (RD) [2011] NSWADTAP 46
Hearing dates:	On the papers
Decision date:	10 October 2011
Jurisdiction:	Appeal Panel - Internal
Before:	D Patten, Deputy President R Perrignon, Judicial Member C Bennett, Non Judicial Member
Decision:	Order that the Appellant pay the Respondent's costs of the appeal as agreed upon or as assessed.
Catchwords:	No question of principle
Legislation Cited:	Administrative Decisions Tribunal Act 1997
Category:	Costs
Parties:	Sally Haddad (Appellant) Chief Commissioner of State Revenue (Respondent)
Representation:	J Haddad (Agent - Appellant) Crown Solicitor (Respondent)
File Number(s):	119005
Decision under appeal	Citation: Haddad v Chief Commissioner of State Revenue [2011] NSWADT 17 Date of Decision: 2011-01-27 00:00:00 Before: Revenue Division File Number(s): 096068