Quy v Commissioner of Taxation (No 2)
[2024] FCA 682
•17 June 2024
FEDERAL COURT OF AUSTRALIA
Quy v Commissioner of Taxation (No 2) [2024] FCA 682
File number: QUD 162 of 2024 Judgment of: LOGAN J Date of judgment: 17 June 2024 Catchwords: PRACTICE AND PROCEDURE – where the applicant applies for an adjournment of a final hearing listed for one day in less than two weeks’ time – where the taxation appeal from the Administrative Appeals Tribunal (Tribunal) concerns whether there was an error of law in the Tribunal’s application of the residency test to the applicant – where the applicant initially retained solicitors, then became self-represented, before recently instructing new solicitors – whether there is an opportunity cost to the administration of justice if adjournment granted – adjournment application refused Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 44
Income Tax Assessment Act 1936 (Cth) s 6
Cases cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Division: General Division Registry: Queensland National Practice Area: Taxation Number of paragraphs: 16 Date of hearing: 17 June 2024 Solicitor for the Applicant: Cooper Grace Ward Lawyers Counsel for the Respondent: Ms E Luck Solicitor for the Respondent: Australian Taxation Office ORDERS
QUD 162 of 2024 BETWEEN: TRONG QUY
Applicant
AND: COMMISSIONER OF TAXATION
Respondent
ORDER MADE BY:
LOGAN J
DATE OF ORDER:
17 JUNE 2024
THE COURT ORDERS THAT:
1.The applicant’s application for an adjournment of the hearing on 28 June 2024 be refused.
2.Orders 5 and 6 of the orders made on 9 May 2024 be vacated.
3.In lieu thereof,
(a)The applicant file and serve on or before 24 June 2024, an outline of submissions not more than 12 pages addressing:
(i)the competency of the appeal; and
(ii)any question of law raised by the appeal,
and, as an annexure to that outline, a proposed further amended notice of appeal.
(b)The respondent file and serve on or before 27 June 2024, an outline of submissions not more than 12 pages addressing:
(i)the competency of the appeal, on the assumption that leave is granted to file the proposed further amended notice of appeal; and
(ii)any question of law raised by the appeal apparent in that proposed further amended notice of appeal,
together with a book of authorities.
4.Insofar as the appeal books filed to date do not contain in full the material before the Administrative Appeals Tribunal, the respondent file and serve forthwith a supplementary appeal book containing such further material as was before the Tribunal as being to date omitted from the existing filed appeal books.
5.The costs of and incidental to today’s case management hearing be the respondent’s costs in the proceedings in any event.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)LOGAN J:
On 25 March 2024, the applicant, Mr Trong Quy (Mr Quy), who then had the benefit of legal representation, lodged (what at least purported to be) a notice of appeal against a decision of the Administrative Appeals Tribunal (Tribunal), given on 26 February 2024.
At issue before the Tribunal was, in essence, whether in the income years in question, Mr Quy was, or was not, a resident of Australia for the purposes of the income tax legislation. On 9 April 2024, Mr Quy terminated the retainer of his then lawyers. Also that day, he lodged (what at least purported to be) an amended notice of appeal.
The response of the respondent Commissioner of Taxation (Commissioner) was to object to the competency of the proceeding. An appeal from the Tribunal lies only in a question of law: see s 44, Administrative Appeals Tribunal Act 1975 (Cth). Evident from the Commissioner’s objection to competency is a reservation on the part of the Commissioner, as to whether truly, even as amended, a question of law is raised.
On 9 May 2024, I made case management directions adapted to the end of a hearing of the appeal, in conjunction with the objection to competency, in Perth on 28 June 2024.
On 10 June 2024, Mr Quy’s present solicitors filed a notice of acting. Contact was made by them, both with the Commissioner’s solicitors, as well as the Court, swiftly thereafter. A sequel to that has been a listing today of the case, for the purpose of hearing an application by Mr Quy for an adjournment of the hearing, fixed on 9 May, for 28 June 2024.
There is no affidavit filed on behalf of Mr Quy which explains why it is that it took a month for him to retain fresh legal representation. I recall from the case management hearing in May that Mr Quy appeared by remote audio-visual means from abroad. I do take into account that there may have been some lag, given his overseas residence, in identifying and retaining Australian legal representation; that, of course, is relevant, but it is not determinative.
Another relevant consideration is the opportunity cost to the administration of justice, were the case to be adjourned. That opportunity cost takes two forms. One is that a day otherwise allocated for a hearing becomes vacant, but at relatively short notice. That makes the prospect of finding alternative hearing work for that day rather slim. The other dimension is that a fresh date would have to be found for the hearing, but at the cost of denying other litigants that day for the purpose of hearing their case. In modern times, such considerations have a greater prominence than, perhaps, they did in earlier times: see Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175. In earlier times, an offer on the part of an applicant seeking an adjournment to pay the costs thrown away by an adjournment, coupled with a disposition by a respondent or defendant not to oppose an adjournment application, often saw an adjournment readily granted.
The issues in this case in the Tribunal were, in the main, issues of fact entailing the application to the evidence presented to the Tribunal of quite well-settled principles, as to the ordinary meaning of resident, and also as to an expanded meaning of resident offered in s 6 of the Income Tax Assessment Act 1936 (Cth). Whether in seeking to apply the meaning of resident, both in its ordinary meaning of resident, as well as expanded, the Tribunal did commit an error of law remains to be seen.
For all that, there is no particular novelty of principle in this case. The only novelty lies in Mr Quy’s particular circumstances.
Taking these latter considerations into account, it seems to me that it would not visit an injustice on Mr Quy, even allowing for the recent decision to retain, again, legal representation, to maintain the hearing date.
There is some need to modify the existing provision, in respect of preliminary submissions in writing, but, once again, the issues as to the law of residency, and the application of that to the particular facts, are not such, in my view, as to visit an injustice on Mr Quy, or the respondent Commissioner, if I truncate the existing timelines for the provision of preliminary submissions in writing.
It was put on behalf of Mr Quy that he may wish further to amend the notice of appeal. Once again, whatever forensic ingenuity may be entailed in the formulation of a further amended notice of appeal, it seems to me that that ingenuity can be accommodated, by providing that the proposed further amended notice of appeal be annexed to the applicant’s written submissions. Apprehending, as I do, that the issues in this case of law entail no particular novelty of principle, it seems to me that whether truly there is a question of law, even as proposed by further amendment, will become readily apparent to those acting for the Commissioner within a very short time indeed after service.
That being so, and bearing in mind the existing commitments that I have which would preclude the aspirational hearing, by adjournment, of the appeal in September absolutely, I am not disposed at all to grant an adjournment.
As to the costs, whilst the Commissioner was disposed to reserve costs, and whilst that was a position that is promoted in draft proposed orders and also promoted by those acting for Mr Quy, it seems to me that the costs of today are better assessed today, rather than upon the final hearing and determination of the appeal. The costs of today are wholly referable to a decision on the part of Mr Quy, quite late in the piece, again to retain legal representation.
Understandably, given a relatively short lead time until the date fixed for hearing, that motivated those acting for him to seek an adjournment. As it happens, that application has not been successful, but the occasion for an additional case management hearing was wholly the result of Mr Quy’s decision, again, to retain legal representation. But for that, there would have been no need for any additional case management hearing prior to the hearing date. So today’s case management hearing, and the costs associated with it, have really been costs visited on the Commissioner by Mr Quy.
The order as to costs will be that the costs of, and incidental to, today’s case management hearing be the respondents’ costs in the proceedings, in any event.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Logan. Associate:
Dated: 24 June 2024
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