Saleh v Commissioner of Taxation
[2009] FCA 925
•17 August 2009
FEDERAL COURT OF AUSTRALIA
Saleh v Commissioner of Taxation [2009] FCA 925
AHMED SALEH v COMMISSIONER OF TAXATION
NSD 1880 of 2008
GRAHAM J
17 AUGUST 2009
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1880 of 2008
BETWEEN: AHMED SALEH
ApplicantAND: COMMISSIONER OF TAXATION
Respondent
JUDGE:
GRAHAM J
DATE OF ORDER:
17 AUGUST 2009
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The Further Amended Notice of Appeal filed by the applicant on 22 June 2009 be dismissed.
2.The applicant pay the respondent’s costs.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1880 of 2008
BETWEEN: AHMED SALEH
ApplicantAND: COMMISSIONER OF TAXATION
Respondent
JUDGE:
GRAHAM J
DATE:
17 AUGUST 2009
PLACE:
SYDNEY
REASONS FOR JUDGMENT
In this matter orders were made on 1 June 2009 in the presence of the applicant and a legal representative for the respondent. The orders included a direction that the appellant file and serve any outline of submissions in response to the respondent’s submissions (if any) on or before 10 August 2009.
Assessments of the applicant’s taxable income and of the tax payable thereon were made in respect of the years of income ended 30 June 2000, 2001, 2002, 2003 and 2004 following an audit by the Australian Taxation Office. He was required not only to pay amounts by way of income tax but also additional tax and administrative penalties. He objected to the assessments and his objections were the subject of objection decisions by the Commissioner for Taxation.
The applicant proceeded to seek review of the Commissioner’s objection decisions in the Administrative Appeals Tribunal. On 5 November 2008 a member of the Administrative Appeals Tribunal decided the application for review partly in the applicant’s favour and concluded that the objection decision be varied to the extent necessary to give effect to the conclusions which he had expressed. The matter was thereupon remitted to the Commissioner of Taxation for implementation of the decision.
By a Notice of Appeal filed 4 December 2008, purportedly in accordance with s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (‘Administrative Appeals Tribunal Act’), the applicant appealed from the decision of the Administrative Appeals Tribunal. The applicant filed a Further Notice of Appeal on 28 May 2009 and a third notice of appeal endorsed as a (Further Amended) Notice of Appeal on 22 June 2009.
When the matter was before the Court for directions on 1 June 2009 it was stood over to 9:30am today, Monday, 17 August 2009.
The name of the applicant has been called three times outside the Court and he has failed to appear.
An outline of the respondent’s submissions in support of his Notice of Motion filed 3 July 2009 seeking dismissal of the applicant’s appeal and other relief were filed on 3 July 2009. The appellant did not file any outline of submissions in response to those of the respondent on or before 10 August 2009.
By facsimile, apparently sent to the Court on 10 August 2009, the applicant pleaded for an extension of three weeks in which to ‘collect all my documents.’ The applicant indicated that he was ‘running out of time’ and was ‘unable to collect and prepare all the documents because of these reasons and commitments, that limit my time and effort to achieve all what I am required to do.’
On 12 August 2009 an email was sent by the Court to the applicant and to the solicitor for the respondent indicating that the matter would remain listed for directions at 9:30am today and that the applicant should bring any outline of submissions with him when he came to Court for the directions hearing. It had earlier been indicated that the Court was not inclined to displace the directions hearing fixed for 17 August 2009. The applicant was advised to bring with him ‘the best possible form of an outline of submissions’ that he could produce in order to comply with the Court’s earlier direction of 1 June 2009. By a facsimile apparently transmitted to the Court on 16 August 2009 the appellant asserted:
‘… I am unable to attend the court Monday 17/08/2009 due to health Disease please find attached here with medical certificate.
I have follow-up checks and medical investigations with the doctors and I will keep you updated at the soonest available.’
A copy of the facsimile was also sent to the solicitor for the respondent. The attached ‘medical certificate’ was purportedly given by a Dr Vidya Shetty of Blacktown Family Medical Centre on 16 August 2009, that is to say, yesterday, which was a Sunday. The medical certificate says nothing about an inability to appear in Court today. It was in the following terms:
‘THIS IS TO CERTIFY THAT
Mr Ahmed Saleh
IS RECEIVING MEDICAL TREATMENT AND FOR THE PERIOD
17/08/09 TO [unreadable] /08/09 INCLUSIVE
He WILL BE UNFIT TO CONTINUE his USUAL OCCUPATION’It is obvious that the medical certificate is of no assistance as a means of explaining the failure by the applicant to appear at today’s directions hearing.
The Notice of Motion filed by the respondent on 3 July 2009 with a return date of 9.30 am today sought orders as follows:
‘1.The Appeal be dismissed generally.
2.Or in the alternative, that the Court, pursuant to s. 31A of the Federal Court of Australia Act 1976 give judgment to the Respondent.
3.Or in the alternative, that pursuant to Order 11 rule 16 the Amended Notice of Appeal filed 22 June 2009 be struck out.
4.The Appeal be dismissed under Order 53 rule 20 for want of prosecution.
5.The Applicant pay the costs of the Respondent of the motion and of the proceedings.
6. Such further or other orders as the Court sees fit.’
When the Notice of Motion was filed it could not have been anticipated by the respondent that the applicant would fail to attend today’s directions hearing. It would seem to me that his non-attendance constitutes a ‘default’ within the meaning of Order 35A of the Federal Court Rules in relation to which the Court may make an order dismissing the proceedings as to the whole of the relief claimed by the applicant under Order 35A rule 3(1)(a).
Order 53 of the Federal Court Rules deals with appeals to the Court under the Administrative Appeals Tribunal Act. Rule 20 provides:
‘20(1)Where an applicant has not done any act required to be done by or under these Rules, or otherwise has not prosecuted his appeal with due diligence, the Court may:
(a)order that the appeal shall be dismissed for want of prosecution; …
...
(2)The Court may not make an order under subrule (1) unless notice of the proposed order has been served on the appellant.
...’
I am satisfied that the applicant had notice of the respondent’s Notice of Motion filed 3 July 2009. A copy of the Notice of Motion was served on the applicant’s wife on 10 July 2009. In addition, the communications recently received by the Court from the applicant clearly indicate his awareness of the matter, which has been listed for hearing today, and of the obligations that had been imposed upon him, both in respect of his attendance today, and also the need for him to file and serve submissions that he may wish to rely upon, on or before 10 August 2009.
In my opinion, the evidence establishes default by the applicant within the meaning of Order 35A of the Federal Court Rules. It also establishes a failure by the applicant to prosecute his appeal under the Administrative Appeals Tribunal Act with due diligence. In the circumstances, it is appropriate that the court order that the appeal be dismissed for want of prosecution. The applicant should pay the respondent’s costs.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham. Associate:
Dated: 20 August 2009
The Applicant did not appear. Counsel for the Respondent: R S Quinn Solicitor for the Applicant: Legal Services Branch Australian Taxation Office
Date of Hearing: 17 August 2009 Date of Judgment: 17 August 2009
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