Print National Pty Ltd v Chief Commissioner of State Revenue (No 2)
[2013] NSWADT 228
•15 October 2013
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Print National Pty Ltd v Chief Commissioner of State Revenue (No 2) [2013] NSWADT 228 Hearing dates: 26 July 2013 Decision date: 15 October 2013 Jurisdiction: Revenue Division Before: N S Isenberg, Judicial Member Decision: 1. Respondent's application to dismiss applications for review of decisions to issue s 72 notices is refused.
2. Noted that both parties have sought to reserve their positions in relation to making an application for the costs of these proceedings. Any such applications may be made at the conclusion of the hearing of the applications for review of decisions in matters 126024 to 126030.
3. The matters are listed for further directions on 5 November 2013 at 10am.
Catchwords: Payroll tax - notices under s 72 of Taxation Administration Act 1996 - Administrator's application to dismiss review applications as frivolous or vexatious. Whether applications for review of decisions are futile. Administrative Decisions Tribunal Act 1997, s 73(5)(g)(ii) Legislation Cited: Administrative Appeals Tribunal Act 1975
(Cth)
Administrative Decisions Tribunal Act 1997
Pay-roll Tax Act 1971
Payroll Tax Act 2007
Taxation Administration Act 1996Cases Cited: Attorney-General v Wentworth (1988) 14 NSWLR 481.
AVS Group Australia Pty Ltd & Tony Sleiman v Commissioner of Police, NSW Police Force [2012] NSWADTAP 24.
Chief Commissioner of State Revenue v Print National Pty Ltd [2013] NSWCA 96.
Commissioner of Taxation v Futuris Corporation Ltd (2008) 237 CLR 146.
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577.
James v Chief Commissioner of State Revenue No. 2 (2011) NSW SC 654.
Johns v Australian Securities Commission (1993) 178 CLR 408.
Re Martin's Application [2001] HCA 41.
The Minister of State for Immigration and Ethnic Affairs v Keenan and Bunker (1993) FCR 244
Singh v Secretary, Department of Employment & Workplace Relations (2006) 43 AAR 469.
Shi v Migration Agents Registration Authority (2008) 235 CLR 286.
Theo v Secretary, Department of Family and Community Services [2005] AATA 699, 41 AAR 307.Category: Interlocutory applications Parties: Print National Pty Ltd (Applicant)
Chief Commissioner of State Revenue (Respondent)Representation: Counsel
P Knowles (Applicant)
S Kaur-Bains (Respondent)
Bilbie Dan (Applicant)
Crown Solicitor's Office (Respondent)
File Number(s): 126024, 126025, 126026, 126027, 126028, 126029,126030
reasons for decision
The Chief Commissioner of State Revenue (the Chief Commissioner) is empowered by ss 71 and 72 of the Taxation Administration Act 1996 (TA Act) to issue notices requiring named persons to provide information, instruments and records and to attend and give evidence before an Authorised Officer. This power may be exercised only for the purposes of a taxation law, including payroll tax laws.
In 2011 the Chief Commissioner issued notices, stated to be pursuant to s 72 of the TA Act. Print National Pty Ltd (Print National) applied to the Tribunal to review the decisions to issue certain notices. Print National's applications are matters 126024-30 in the Tribunal (the s 72 Proceedings).
The issue now before the Tribunal is an application by the Chief Commissioner to dismiss the s 72 Proceedings on the ground that they are futile.
Background
The background to the s 72 Proceedings is set out in Exhibit R2 (Agreed Facts).
From about September 2007, the Chief Commissioner commenced an investigation into David James (Mr James) and his relationship to a number of companies, including Print National, to ascertain whether there had been a failure to declare wages paid by entities that might constitute members of a group of entities for payroll tax purposes.
In the course of the investigation the Chief Commissioner made decisions (the Decisions) to issue 11 notices under s 72 of the TA Act (Notices) to nine persons. Mr James and Raymond Walker (Mr Walker), recipients of Notices, have not complied with Notices issued to them to provide specified documents and Mr James has not provided written answers to specified questions within the time stipulated in the Notices or any extended time for compliance (Incomplete Notices). All other recipients, and Mr Walker, have complied with the requirements of Notices (Completed Notices) issued to them to attend before an Authorised Officer and give oral evidence. Print National, which was not the recipient of a Notice, objected to the Decisions. The objections were disallowed. Print National applied to the Tribunal seeking a review of the Decisions.
The Chief Commissioner sought to preclude the review and at his request certain issues were referred to the Court of Appeal. The decision, in Chief Commissioner of State Revenue v Print National Pty Ltd [2013] NSWCA 96 (Special Case) was handed down on 17 April 2013. The Court of Appeal was requested to answer the following questions:
"1 Whether the Applicant, in respect of the decisions of the Chief Commissioner of State Revenue to issue 11 notices under s 72 of the Taxation Administration Act 1996 ("TAA") is entitled to object under s 86(1)(b) of the TAA to the decisions.
2 Whether pursuant to s 96(1) of the TAA, the Applicant may apply to the Administrative Decisions Tribunal for a review of the decisions."
In his judgment Gzell J, said at [15]: "Notwithstanding the Chief Commissioner's consideration and disallowance of Print National's objection as if s 91 of the TA Act applied, he now contends that Print National was not entitled to lodge written objections in relation to the Decisions under s 86(1)(b) and that Print National cannot apply to the ADT for a review of the objection decisions because objections to the Decisions are prerequisites to a review under s 96(1)(a). The Chief Commissioner submitted that both questions referred to the Court should be answered in the negative."
Gzell J's judgment, with which Bathurst CJ and Beazley P agreed, answered both questions in the affirmative and awarded costs against the Chief Commissioner.
The Chief Commissioner and Print National have informed the Tribunal that prior to the hearing of the Special Case the Chief Commissioner issued payroll tax assessments against Print National and several other companies for the period 1 July 2003 to 30 June 2010 on the basis that the companies were grouped.
On 22 May 2013 the Chief Commissioner orally informed the Tribunal of the judgment in the Special Case and requested that a preliminary issue be dealt with in relation to the s 72 Proceedings. The Chief Commissioner sought an order that the s 72 Proceedings be dismissed as "futile".
The preliminary issue was heard on 26 July 2013 (these proceedings). The Tribunal has had the benefit of written and oral submissions by both parties. The Agreed Facts and the Index of Documents for the Special Case have been tendered to the Tribunal as has a letter from the Chief Commissioner to Print National dated 21 February 2012.
The law
Taxation Administration Act 1996
"71 Circumstances in which investigative powers may be exercised
A function conferred under this Division may be exercised only for the purposes of a taxation law.
72 Power to require information, instruments and records, and attendance
(1) The Chief Commissioner may require a person, by written notice, to do any one or more of the following:
(a) to provide to the Chief Commissioner (either orally or in writing) information that is described in the notice,
(b) to attend and give evidence before the Chief Commissioner or an authorised officer,
(c) to produce to the Chief Commissioner an instrument or record in the person's custody or control that is described in the notice.
(2) The Chief Commissioner must, if the requirement is made of a person to determine that person's tax liability, indicate in the notice that the requirement is made for that purpose, but the Chief Commissioner is not otherwise required to identify a person in relation to whom any information, evidence, instrument or record is required under this section.
...
(8) The person to whom the notice is given must comply with the notice within such period as is specified in the notice or such extended period as the Chief Commissioner may allow." Maximum penalty (subsection (8)): 100 penalty units.
Administrative Decisions Tribunal Act 1997
"63 Determination of review by Tribunal
(1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:
(a) any relevant factual material,
(b) any applicable written or unwritten law.
(2) ...
(3) In determining an application for the review of a reviewable decision, the Tribunal may decide:
...
(c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or
(d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal."
73 Procedure of the Tribunal generally
Section 73(5)(g)(ii)
73(5) "The Tribunal ...
(g) may dismiss at any stage any proceedings before it in any of the following circumstances:
(i)...
(ii) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance".
Submissions and consideration
It is common ground that the TA Act provides for administrative review by the Tribunal of certain decisions of the Chief Commissioner. Print National requested a review by the Tribunal of the decisions to issue the Notices. The Chief Commissioner claimed that the decisions were not reviewable by the Tribunal at the request of Print National. This claim was rejected by the Court of Appeal in the Special Case. The Chief Commissioner now applies to the Tribunal to stop the requested review.
In written submissions dated 13 June 2013 the Chief Commissioner argues that the applications for review of the Decisions should be dismissed because: "even assuming Print National were to succeed... so that the decisions to issue the s.72 Notices were set aside:
the validity of the Assessments that have been issued against Print National (for which the s.72 Notices were issued) would not be affected by the fact that the decisions to issue the s.72 Notices have been set aside;
given that no s.72 Notice was issued against Print National, no offences have been committed by Print National in failing to comply with the s.72 Notices."
Accordingly "there is no utility for Print National as the applicant, in pursuing the proceedings" [2].
The Chief Commissioner expanded on the above submissions and both the Chief Commissioner and Print National raised additional submissions as follows:
Power to dismiss The Chief Commissioner submitted that s 73(5)(g)(ii) of the Administrative Decisions Tribunal Act 1997 (ADT Act) provides that the Tribunal has power to dismiss proceedings to the extent that the Tribunal considers the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance. Counsel referred to Theo v Secretary, Department of Family and Community Services [2005] AATA 699, 41 AAR 307 (Theo) at [14] and [37]. Paragraph [14] outlines powers of dismissal of proceedings by the Administrative Appeals Tribunal (AAT) which counsel contends are similar to the provisions of s 73(5)(g)(ii). Counsel noted that the corresponding legislation empowering the AAT does not go on to say "or otherwise misconceived or lacking in substance". At paragraph [37] Fisher M said "much of the content of a power to summarily dismiss a proceeding or process on the basis that it is frivolous or vexatious contains a common core of principles and elements, namely futility...lack of merit in the proceeding..."
Print National accepts that the Tribunal has power to dismiss the s 72 Proceedings under s 73(5)(g)(ii) on the ground that they are futile and adopts the point made by the Chief Commissioner that the power is relevantly identical in both the AAT and in the Tribunal. However Print National submits the power is to be exercised sparingly and refers to Singh v Secretary, Department of Employment & Workplace Relations (2006) 43 AAR 469 in which Weinberg J held at [50] in relation to the equivalent power of the AAT:
"Section 42B(1)(b) must be applied having regard to a fundamental principle of the rule of law. Every person has a right to apply to a tribunal, or a court, to seek remedies in consequence of an alleged infringement of his or her rights. Because a direction given under s 42B(1)(b) denies a person this right, it is a remedy that should not be invoked except in an extreme case".
Print National also submitted at [6] in its written submissions dated 4 July 2013 "proceedings will not be futile (or vexatious or frivolous) simply because the decision under review has ceased to have operative effect" and referred to the decision of O'Connor P in AVS Group Australia Pty Ltd & Tony Sleiman v Commissioner of Police, NSW Police Force [2012] NSWADTAP 24." (AVS Group)
In response counsel for the Chief Commissioner referred to paragraphs [24] - [26] in AVS Group:
"24 There is no fixed rule of the kind for which the Commissioner contends that would have required the Tribunal to enter an order of dismissal simply because the underlying entitlement, licence or authority had ceased to operate.
25 In these circumstances, the question of whether the Tribunal should continue to deal with the dispute is to be judged by reference to discretionary considerations relating to the proper management of the proceedings, and having regard to the statutory powers given to the Tribunal including its formal powers of dismissal.
26 Those discretionary considerations will include the question of whether there is a live dispute or controversy. In that regard, I accept, of course, that it is not appropriate that the Tribunal, or the Appeal Panel, spend time dealing with idle disputes or giving advisory opinions, both for resources reasons as well as ones of intellectual precision."
Counsel for both parties sought to rely on the decision of Fisher M in the AAT in Theo. That matter referred to a power of dismissal of an application exercisable by the AAT pursuant to s 42B of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) on the basis that the application was "frivolous or vexatious". Fisher M referred to Attorney-General v Wentworth (1988) 14 NSWLR 481 in which Roden J said at 491:
"It seems then that litigation may properly be regarded as vexatious for present purposes on either objective or subjective grounds. I believe that the test may be expressed in the following terms:...3. They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless."
Fisher M also referred to Re Martin's Application [2001] HCA 41 where, in connection with O 58 r 4(3) of the High Court Rules 1952 (since repealed) dealing with jurisdiction for the High Court Registrar to refer to a Justice of the High Court of Australia for a direction in relation to any writ, process or commission that appears on its face to be frivolous or vexatious, Kirby J said at [19]: "the Justice exercising the applicable powers must decide whether the process is frivolous or vexatious. It will be so if the process cannot be supported as arguable having regard to the state of law, is futile because it is bound to fail on the facts pleaded."
Fisher M continued at [37]:"much of the content of a power to summarily dismiss a proceeding or process on the basis that it is frivolous or vexatious contains a common core of principles and elements, namely futility... lack of merit in the proceeding or application..." and at paragraph F in [38] "The power to dismiss an application on the basis that it is vexatious or frivolous may be exercised if the application is otherwise devoid of utility." This is something which the AAT in Theo took into account as one of the relevant policies "principles and propositions of law" in dismissing an application regarded as "frivolous or vexatious".
As noted above the Tribunal's power to dismiss proceedings pursuant to s 73(5)(g)(ii) was discussed in AVS Group by O'Connor P. His Honour relevantly said at [25] and [26] the power "is to be judged by reference to discretionary considerations" including "whether there is a live dispute or controversy" and "it is not appropriate that the Tribunal...spend time dealing with idle disputes".
The Tribunal has the power to dismiss the s 72 Proceedings pursuant to s 73(5)(g)(ii). The question as to whether that power should be exercised has regard to whether the s 72 Proceedings are futile and devoid of utility or whether there is a relevant "live dispute or controversy".
Onus on Chief Commissioner to establish lack of utility in the s 72 Proceedings Print National argues that in these proceedings the onus is on the Chief Commissioner to demonstrate an absolute or near absolute lack of utility if Print National is to succeed in having the Notices set aside. Counsel referred to the reference in Theo to the phrase "devoid of utility" at [38] and submitted that when considering questions of utility the Tribunal does not conduct a mini trial into the likely outcome of the s 72 Proceedings. Rather, the question is, if Print National is successful, will that success be completely devoid of any utility. If not, then the dismissal application should not succeed.
Counsel for the Chief Commissioner accepts that he bears the onus to show that the Tribunal is empowered by section 73(5)(g)(ii) to dismiss the applications to review the Decisions and submits that the Tribunal should do so because any such review would have no utility to Print National and would therefore be futile. Counsel asserted that "there is always some possibility of something. The question is, is it a real possibility so that there is utility, so there is substance in the application, it is not merely an academic exercise" and "it cannot be a fanciful possibility".
I find that in order to succeed in these proceedings the onus lies on the Chief Commissioner to prove "the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance".
Use of information in relation to issued assessments and assessments not yet issued Print National submits at [15] in its written submissions that it is "feasible that information sought by the notices could be relevant to the liability of Print National to payroll tax in years after 2010 (in relation to which investigations are, apparently, continuing). Print National has an obvious interest in setting the notices aside in order that information obtained ...is not available to the Commissioner for the purposes of these post-2010 assessments." In oral argument counsel for Print National referred to certain of the Notices expressly referring to invoices for a period after 30 June 2010. A Notice issued to Mr James refers to customer invoices from June 2011... A Notice to Mr Walker refers to "financial use covered by this notice 2010 to 2011..." This information could be used against the interest of Print National in relation to assessments not yet issued for periods after 30 June 2010.
Counsel for the Chief Commissioner initially argued that the period after 30 June 2010 was not relevant, that the investigation past 2010 is the subject of separate notices, and that there is no evidence that the possible use of information obtained pursuant to the Notices is intended to be used for any post June 2010 period. However counsel subsequently conceded that there was no estoppel against the Chief Commissioner using the information for any such later period and it was possible that the information would be so used.
The Incomplete Notices were stated to be issued under either s 72(1)(a) or (c) of the TA Act and required the production of specified records or the provision of information in relation to particular questions. All such Notices referred to documents events or circumstances involving Print National and they all referred expressly or by implication to periods of time both before and after 30 June 2010.
All of the Completed Notices state they are issued under s 72(1)(b) of the TA Act and require the named recipient to attend and give evidence before a named Delegate of the Chief Commissioner or an Authorised Officer. In each of these Notices the express purpose of the compulsory attendance is "to determine if there have been any breaches pursuant to the Payroll Tax Act, 1971 (sic) and the Payroll Tax Act 2007". No mention is made as to whether potential breaches were committed by Print National or some other person nor is any mention made as to the period in respect of which breaches may have occurred. Pursuant to s 72(2) of the TA Act the Chief Commissioner is not required to provide any such information in a s 72(1) notice unless it is directed to "a person to determine that person's tax liability".
No evidence has been presented to the Tribunal as to what material was obtained by the Chief Commissioner pursuant to the operation of the Notices. Nor is there any evidence as to whether such material relates to the period 1 July 2003 to 30 June 2010 or the period from 1 July 2010 or to both periods nor as to whether any material relates to any alleged payroll tax liability of Print National.
The Chief Commissioner did not assert that all of the material obtained pursuant to the Completed Notices related only to payroll tax periods up to 30 June 2010 nor that no such material related to a payroll tax period after 30 June 2010.
Counsel for Print National asserts that material may have been obtained pursuant to Notices and used in relation to assessments issued for payroll tax periods from 1 July 2003 to 30 June 2010. Print National submits that if relevant Notices are set aside there may be an issue as to the status of information obtained pursuant to those Notices.
I find that there may be utility in the s 72 Proceedings, at least in relation to the Completed Notices. I find that this is a real possibility and not something that has been shown to be futile.
Injunctive relief Print National argued in its written submissions at [13] "to the extent the notices have been complied with, if they are set aside there may be an issue as to the status of information obtained pursuant to those notices. It is not out of the question that, if the notices are set aside, an injunction would be available to Print National to restrain the use of such information: Johns v Australian Securities Commission (1993) 178 CLR 408 at 427. If obtained, such an injunction could affect the pending review of the assessments because it may prevent the Chief Commissioner (and the Tribunal "standing in his shoes") from relying on information obtained under any notice which is set aside."
Print National also submitted and the Chief Commissioner conceded that Print National could approach the Supreme Court for injunctive relief or commence proceedings for judicial review. However the Chief Commissioner noted that is not the course of action Print National took. Reference was made to James v Chief Commissioner of State Revenue No. 2 (2011) NSW SC 654 as an example of an application made to the Supreme Court for judicial review in relation to documents which may be relevant to assessments. The Chief Commissioner further submitted that the Tribunal had no power to grant an injunction or make an order preventing the Tribunal in proceedings reviewing the issued assessments (the substantive proceedings) from having regard to material obtained pursuant to Notices even if those Notices had been set aside.
I accept Print National's written submission at [13] to the extent that if the notices are set aside, an injunction may be available to Print National to restrain the use of certain material obtained pursuant to the Notices. Perhaps Print National would not apply for an injunction or may not be successful in such an application. However I regard the possibility of such an application as real and not merely fanciful or an academic exercise.
I find that there may be utility in the s 72 Proceedings in relation to a subsequent review by the Tribunal of the issued assessments in the substantive proceedings.
Requirement for the Tribunal to consider all relevant available material The Chief Commissioner's written submissions state at [8] "The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him" rather "the question for determination... is whether the decisions made by the Chief Commissioner to issue the section 72 Notices were the correct or preferable decisions given the material now before the Tribunal" at [10] and "The material before this Tribunal includes the fact that assessments have now been issued against Print National and other taxpayers...." at [11].
Counsel for the Chief Commissioner also referred to the judgments in Shi v Migration Agents Registration Authority (2008) 235 CLR 286 and Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 supporting his submission that the material to be considered by the Tribunal in a review is to include all relevant information then before the Tribunal, not merely the material available to the Chief Commissioner at the time of the decision under review.
Print National accepts that pursuant to s 63(1) of the ADT Act, the Tribunal, when reviewing a reviewable decision shall have regard to the material then before it and this may include, in relation to the s 72 Proceedings, the issued assessments which may be based to an extent on information obtained pursuant to the Notices.
Section 63(1)(a) of the ADT Act is set out above and its interpretation is not in issue.
Validity of assessments The Chief Commissioner's written submissions at [12] and [13] argued that the combined effect of ss 16 and 119 of the TA Act is that the validity of the assessments issued against Print National is not affected by a failure to comply with any provisions of the TA Act, including a failure to comply with s 72 of the TA Act. Accordingly even if the Tribunal finds that the Decisions were not the correct or preferable decisions and in accordance with s 63(3) of the ADT Act sets aside the Decisions, the orders will have no effect on the issued assessments which remain valid.
Print National did not challenge the validity of the assessments. What it challenged is whether the assessments were correct. Print National submits that the s 72 Proceedings go to the question of what information was available to the Chief Commissioner in relation to the assessments. Counsel referred to Commissioner of Taxation v Futuris Corporation Ltd (2008) 237 CLR 146 and asserts that while procedural non-compliance may not invalidate a decision, it may affect the outcome in a merits review.
The position as to the legal validity of the issued assessments if the Notices are set aside is not in dispute and I make no finding in that regard. A question for consideration in these proceedings is whether the outcome in the s 72 Proceedings and a possible application by Print National to restrict the use of material obtained pursuant to those Notices could conceivably affect the merits review of the assessments pending in the Tribunal. I find this to be a real possibility and of potential utility to Print National.
Effect on possible offences The Chief Commissioner's written submissions at [14]-[15] state "The only other reason for setting aside the decisions is that it would have an effect on whether offences were committed in failing to comply with the s.72 Notices." Counsel submitted that this is of no practical utility as several recipients of Notices have already complied with the Notices. There may be some practical utility for Mr James and Mr Walker as they have not complied with Notices to them however "no utility can be seen for Print National in setting aside those decisions" as Print National did not receive any Notices, has not failed to comply with Notices and has not committed an offence which might otherwise not have been committed if it was a non-complying recipient of a Notice.
Print National submits that if the Incomplete Notices are set aside, the recipients would not have committed offences of failing to comply with them. Accordingly there would be utility in setting aside the Incomplete Notices. Counsel also submits that it is available to the Tribunal to join Mr James and Mr Walker as parties. Counsel informed the Tribunal that he has instructions from Mr James that he would be willing to be joined as a party to these proceedings if required in order to demonstrate that the s 72 Proceedings are not futile. Counsel referred to The Minister of State for Immigration and Ethnic Affairs v Keenan and Bunker (1993) FCR 244 in which proceedings were commenced by a person with an interest in a matter and then the person directly affected by the matter, who did not have standing to commence the proceedings, was joined to the proceedings.
Counsel for the Chief Commissioner submitted that if the Tribunal dismissed all the other s 72 Proceedings Print National's argument would only affect applications number 126024 and 126025, involving Incomplete Notices issued against Mr James.
The Chief Commissioner also conceded that it is not essential for Mr James and Mr Walker to be joined in order for the Incomplete Notices to be set aside.
I find that there may be utility for Mr James and Mr Walker in relation into the possible commission of offences pursuant to s 72(8) of the TA Act if the Incomplete Notices are set aside. I do not need to deal further with this issue as no potential offences of non-compliance with Notices are raised against Print National.
Late compliance with notices Print National submitted that although the time for compliance has expired in relation to the Incomplete Notices there is a real possibility that so long as those Notices are not set aside information may be produced to the Chief Commissioner that could be used against the interest of Print National in proceedings reviewing the issued assessments. Counsel does not understand the Chief Commissioner to argue that although the time for compliance has expired the Incomplete Notices therefore cease to have any binding force. Therefore the s 72 Proceedings are not futile.
The Chief Commissioner submits that there is no evidence that Mr James or Mr Walker intend to comply with the Incomplete Notices.
I note that the last date for compliance with the Incomplete Notices was November 2011, over 18 months before the hearing in these proceedings. I accept Print National's submission that it is possible that there may be late compliance. However I also accept the Chief Commissioner's submission that there is no evidence before the Tribunal of any intention by either Mr James or Mr Walker to comply with those Notices. I do not find that the possibility of compliance is a real possibility.
I have regard to the point raised by Print National's counsel in relation to the right of a party to have its day before a court or tribunal in order to seek a relevant remedy.
Decision
Having regard to the above findings on the material before me I do not consider that the s 72 Proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance (as required by section 73(5)(g)(ii) of the ADT Act). Accordingly I find that the Chief Commissioner has not discharged the onus required for him to succeed in this dismissal application. The correct and preferable decision is to make the order below.
Order
1. Respondent's application to dismiss applications for review of decisions to issue s 72 notices is refused.
2. Noted that both parties have sought to reserve their positions in relation to making an application for the costs of these proceedings. Any such applications may be made at the conclusion of the hearing of the applications for review of decisions in matters 126024 to 126030.
3. The matters are listed for further directions on 5 November 2013 at 10am.
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Decision last updated: 15 October 2013
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