Kunz, Leslaw Francescek v The Commissioner of Taxation of the Commonwealth of Australia

Leslaw Francescek Kunz, the applicant, appealed against decisions made by the Administrative Appeals Tribunal (AAT) regarding assessments of his income by the Commissioner of Taxation, the respondent. The AAT had affirmed increases in Kunz's assessable income for the years ended 30 June 1987 and 1988, and reduced his income for the year ended 30 June 1989. Kunz argued that the increases were due to gambling winnings and sales of his mother's estate, and sought to have a statement from Boris Beljajev, a friend and business associate, admitted as evidence. The AAT initially accepted the statement but later decided it would not consider it due to the lack of cross-examination, without reconvening the hearing to allow Kunz to present alternative evidence.

The legal issues before the court were whether the AAT's refusal to grant an adjournment to allow Beljajev to testify denied Kunz procedural fairness, and whether the AAT erred in law by not reconvening the hearing to inform Kunz of its decision to disregard the statement. The court found that while the initial refusal of an adjournment did not breach procedural fairness, the AAT's subsequent decision to disregard the statement without reconvening the hearing did. This decision denied Kunz the opportunity to present alternative evidence, contravening section 39 of the Administrative Appeals Tribunal Act 1975, which requires parties to be given a reasonable opportunity to present their case.

The court allowed the appeals, set aside the AAT's decisions, and remitted the matters to the AAT to be heard by a differently constituted tribunal. The respondent was ordered to pay Kunz's costs of the appeals. The court reasoned that a rehearing by a different tribunal would better ensure justice was seen to be done, given the extensive and critical nature of the AAT's original decision.