St George Wholesale Distributors Pty Ltd v Chief Commissioner of State Revenue

[2014] NSWCATAD 134

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	St George Wholesale Distributors Pty Ltd v Chief Commissioner of State Revenue [2014] NSWCATAD 134
Hearing dates:	25 August 2014
Decision date:	10 September 2014
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Dr H R Sorensen, Senior Member
Decision:	Application for adjournment allowed
Catchwords:	ADMINISTRATIVE LAW - Civil and Administrative Tribunal (NSW) - application for adjournment - await decision of Supreme Court on related grounds - interests of justice - delay - public confidence
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Amendment Act 2013 (NSW) Payroll Tax Act 2007 (NSW) State Revenue Legislation Amendment Act 2010 (NSW) Taxation Administration Act 1996 (NSW)
Cases Cited:	Aon Risk Services Australia Ltd v Australia National University (2009) 239 CLR 175 Betta Industries Pty Ltd v Chief Commissioner of State Revenue (NSW) [2013] NSWADT 68 City of Sydney Council v Satara [2007] NSWCA 148 Complete Wardrobes & Showerscreens Pty Ltd v Chief Commissioner of State Revenue [2013] NSWADT 67 Meggitt Overseas Ltd v Grdovic (1998) 43 NSWLR 527 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 Water Conservation
Category:	Interlocutory applications
Parties:	St George Wholesale Distributors Pty Ltd (Applicant) Chief Commissioner of State Revenue (Respondent)
Representation:	Counsel I Young (Applicant) M Sealey (Respondent) W Lawyers (Applicant) Crown Solicitor's Office (Respondent)
File Number(s):	1410186

reasons for decision

1. This interlocutory application by the applicant, St George Wholesale Distributors Pty Ltd, is for an adjournment of the proceeding pending a decision of the Supreme Court relevant to an issue arising in the substantive proceeding. The respondent does not oppose the application for an adjournment. For reasons given below, the application for adjournment is granted.

1. Paul's Retail Pty Ltd as trustee for Paul's Warehouse Discretionary Trust incurred payroll tax liabilities under assessments raised for the periods 1 July 2007 to 23 January 2008 and 1 July 2010 to 31 January 2012. That taxpayer and the applicant are "grouped' under Part 5 of the PayrollTaxAct2007 (NSW).

1. Pursuant to s 81(1) of the Act, if a member of a group fails to pay an amount that the member is required to pay under the Act, every member of the group is liable jointly and severally to pay that amount to the Chief Commissioner. In such a case the Chief Commissioner, pursuant to TaxationAdministrationAct1996 (NSW), s 45(2A) may-

issue a notice of assessment of the liability of a person to pay any tax and related charges for which the person is jointly and severally liable with another person under a taxation law, even if a notice of assessment has already been issued to the other person.

1. In respect to the Paul's Retail tax liabilities, the Chief Commissioner issued to the applicant as a group member, a s 45(2A) notice of assessment with issue date 16 February 2012.

1. Section 45(2A) was inserted into the TaxationAdministrationAct by the StateRevenueLegislationAmendmentAct2010 (NSW), Schedule 11[2]. That amendment commenced on the date of assent of the Amendment Act, 28 June 2010.

1. The substantive proceeding is an application for review of payroll tax assessment decisions relating to the periods 1 July 2007 to 23 January 2008, the 2010 year and each of the months from July 2011 to January 2012.

1. One of the issues arising in the substantive proceeding is whether s 45(2A) operates in respect to any period ended prior to 28 June 2010. The assessment for the period 1 July 2007 to 23 January 2008 is the only assessment subject to the applicant's challenge on the s 45(2A) issue. The liability under that assessment is $267,443.61 and represents a substantial portion of the total liability under all assessments in issue.

1. The application for adjournment is supported by an affidavit affirmed 14 July 2014 by Ajit Wijesinghe. The annexures to the affidavit include a copy of the Summons filed in Supreme Court proceeding Secom Australia Pty Ltd v Chief Commissioner of State Revenue, Case number 2014/148214. The Supreme Court proceeding is a review pursuant to the TaxationAdministrationAct, s 97. Details of the review, orders sought and review grounds are set out in the plaintiff's summons filed 16 May 2014.

1. In the Secom proceedings the s 45(2A) issue is one of the review grounds recited in the summons. The respondent is party to the Secom proceeding as defendant.

The power to adjourn

1. Pursuant to s 51 of the CivilandAdministrativeTribunalAct2013 (NSW),

The Tribunal may adjourn proceedings to any time and place (including for the purpose of enabling the parties to negotiate a settlement).

1. Section 51 is in the same terms as former s 73(5)(f) of the AdministrativeDecisionsTribunalAct1997 (NSW) - the latter provision was repealed at the time the CivilandAdministrativeTribunalAct came into force: see CivilandAdministrativeTribunalAmendmentAct2013 (NSW) No 94, Sch 2.2 [31]. Section 73(5)(f) was considered by the Administrative Decisions Tribunal, R L Seiden, Deputy President, in CompleteWardrobes&ShowerscreensPtyLtdvChiefCommissionerofStateRevenue [2013] NSWADT 67 and in BettaIndustriesPtyLtdvChiefCommissionerofStateRevenue(NSW) [2013] NSWADT 68.

1. On its terms the s 51 discretion to adjourn is unconfined save with respect to the subject matter, scope and purpose of the statutory regime: WaterConservationandIrrigationCommission(NSW)vBrowning (1947) 74 CLR 492 at 505.2 per Dixon J; NeatHoldingsPtyLtdvKarajanHoldingsPtyLtd (1992) 110 ALR 449; (1992) 67 ALJR 170; [1992] HCA 66.

1. Other relevant statutory provisions of the CivilandAdministrativeTribunalAct include the following:

(1) Section 3(c) provides that the objects of the Act include to ensure that the Tribunal is accessible and responsive to the needs of all of its users.

(2) Section 3(d) provides that another object is to enable the Tribunal to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible.

(3) Section 3(e) provides that the Tribunal is to ensure that the decisions of the Tribunal are timely, fair, ....

1. Competing interests to be weighed would include-

(1) The interest of the parties to have the issues in the case determined in a way that will be consistent with any future decision of the court in the Secom case: CityofSydneyCouncilvSatara [2007] NSWCA 148 (8 June 2007) at [32].

(2) The interest of the applicant to have its claims heard and determined as quickly as possible - although in this instance the adjournment is sought by the applicant and is not opposed by the Chief Commissioner.

(3) A general public interest in the administration of justice: AonRiskServicesAustraliaLtdvAustraliaNationalUniversity (2009) 239 CLR 175 at 211.

1. Whilst a court (or Tribunal) deals with the law as it is, rather than speculates about changes in the law, there may be circumstances where it is appropriate to adjourn the proceeding pending the outcome of an appeal in an unrelated case: CityofSydneyCouncilvSatara at [19], [20] and [32].

Level of certainty issue will be addressed in Secom

1. The level of certainty that the s 45(2) issue will be addressed in the Secom proceeding and when that is likely to occur are also considerations in exercising the discretion to adjourn: MeggittOverseasLtdvGrdovic (1998) 43 NSWLR 527.

1. I accept that it is likely the s 45(2A) issue will be addressed in Secom.

Length of adjournment

1. In the current proceeding the application for review was filed 14 April 2014. No directions as to filing of evidence in the substantive proceeding have yet been made. In the Secom proceeding the defendant's appeal statement is due to be filed by 9 September 2014. The parties' counsel concur in the view that the Secom case likely will not be ready for a hearing date until early 2015. The length of the adjournment is therefore not insubstantial (CompleteWardrobes at [35]).

Inconvenience to the Tribunal

1. The matter is in early stages of preparation and does not yet have a hearing date. The inconvenience to the Tribunal is therefore minimal (CompleteWardrobes at [36]).

Interests of Justice

1. In addition to the interests of the parties there is a public interest in the efficiency of the legal system. On this matter the Tribunal in CompleteWardrobes (and BettaIndustries at [39]-[46]) said-

[40] In AonRiskServicesAustraliaLtdvAustralianNationalUniversity (2009) 239 CLR 175 (Aon), the court was considering an application, made on day three of a four week trial, to adjourn and make amendments to the statement of claim. Prejudice to the defendant was plain and the High Court noted that costs orders were no longer considered a panacea. Prejudice to the other party was not however the court's only concern. As French CJ noted at [5]:

... the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system.

[41] At [23]-[24] the Chief Justice further noted:

In this respect, however, the adversarial system has been qualified by changing practices in the courts directed to the reduction of costs and delay and the realisation that the courts are concerned not only with justice between the parties, which remains their priority, but also with the public interest in the proper and efficient use of public resources ...

... Undue delay can undermine confidence in the rule of law. To that extent its avoidance, based upon a proper regard for the interests of the parties, transcends those interests. Another factor which relates to the interests of the parties but transcends them is the waste of public resources and the inefficiency occasioned by the need to revisit interlocutory processes, vacate trial dates, or adjourn trials either because of non-compliance with court timetables or, as in this case, because of a late and deliberate tactical change by one party in the direction of its conduct of the litigation.

[42] No question of deliberate tactical change or tardy behaviour by a litigant arises in this case. However, the interests of justice are plainly served by the timely disposition of maters in the Tribunal. As stated by the Chief Justice in Aon, at [27]:

However, the mischief engendered by unwarranted adjournments and consequent delays in the resolution of civil proceedings goes beyond their particular effects on the court in which those delays occur ... the public interest in the efficient use of court resources is a relevant consideration in the exercise of discretions to amend or adjourn.

[43] Unnecessary delay risks eroding the public confidence in the legal system. As stated by the Chief Justice in Aon, at [30]:

Also to be considered is the potential for loss of public confidence in the legal system which arises where a court is seen to accede to applications made without adequate explanation or justification, whether they be for adjournment, for amendments giving rise to adjournment, or for vacation of fixed trial dates resulting in the resetting of interlocutory processes.

[44] As the Plurality in Aon, (Gummow, Hayne , Crennan, Kiefel and Bell JJ) noted (at [98]):

a "just resolution" is to be understood in light of the purposes and objectives stated. Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings.

[45] Rules of court (and of the Tribunal) minimising delay recognise the "ill-effects" of delay not only on the parties, but to litigants generally (Aon at [101]).

[46] These concepts are given application in the Tribunal's [statutory] objects .... As Heydon J noted in Aon (at [156]). The court (and by analogy a Tribunal) has a duty to achieve its objects.

[47] To grant an adjournment at this stage because there is a mere suggestion that the Tribunal will deliver a decision that turns out to be inconsistent with a subsequent court of Appeal decision would not pay due regard to the important concepts the High Court emphasised in Aon and before that decision, in SalivSPCLtd (1993) 67 ALJR 841 at 843-844 (Brennan, Deane, McHugh JJ) and at 849 (Toohey, Gaudron JJ). ....

1. The parties do not say they are prejudiced by the adjournment - they support it. Even so, "It does not further the interests of justice to delay proceedings in the absence of clear grounds." (CompleteWardrobes at [47].)

1. I am satisfied that: the s 45(2A) issue is an issue in the Tribunal; it is likely that that issue will be determined by the Supreme Court; the inconvenience to the Tribunal is minimal. I am satisfied that the interests of justice favour granting the adjournment.

Decision

1. The application for adjournment is allowed. The matter is to be listed for directions on 10 February 2015 at 9.30am at which time the respondent is to update the Tribunal as to the progress of the Secom proceeding. In the meantime, the respondent is to notify the Registry if, for any reason, that proceeding is not going ahead, or not going ahead on the s 45(2A) issue, or if prior to the directions listing on 10 February 2015 it is listed for hearing by the Supreme Court. The matter will then be listed for directions at an earlier date.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 10 September 2014