VFS Transport Pty Ltd and Commissioner of Taxation

[2010] AATA 382

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 382

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          Nos 2008/2547-2549,

GENERAL ADMINISTRATIVE DIVISION		)                 2009/1387 & 2009/4050
Re		VFS Transport Pty Ltd

Applicant

And Commissioner of Taxation

Respondent

DECISION

Tribunal Mr G. L. McDonald, Deputy President

Date18 May 2010

PlaceMelbourne

Decision The Tribunal decides that the application for an adjournment of the hearing listed for 24 and 25 May 2010 is refused.

......(sgd G L McDonald).......

Deputy President

CATCHWORDS – PRACTICE AND PROCEDURE – application for adjournment of hearing – history of delay – public policy and cost considerations – application for adjournment refused

REASONS FOR DECISION

21 May 2010   Mr G. L. McDonald, Deputy President

1.      The applicant has requested written reasons for the Tribunal's decision not to grant an adjournment for the hearing of this application.

2.      The application was filed on 6 June 2008.  Between that date and the date of issue of the first direction on 17 December 2008 the case was listed for six telephone preliminary conferences.  Of those listed conferences at least one was vacated and relisted at the request of the applicant's then solicitors because of the unavailability of the applicant's counsel.[1]

[1] Letter of 26 September 2008.

3.      The Tribunal direction issued on 17 December set a timetable for both parties to file witness statements, documents to relied on at the hearing and statements of facts, issues and contentions.

4.      Settlement was proposed by the respondent in a letter to the applicant's representative in a letter dated 18 December 2008.

5.      In a letter dated 23 February 2009 the applicant's representative requested a three week extension of time to comply with the Tribunal's direction of 17 December because counsel was 'unavoidably held back due to a lengthy trial'.  On 24 February 2009 the Tribunal issued an amended direction granting the extension of time requested by the applicant's representative to 16 March 2009.

6.      In a letter dated 18 March 2009 the applicant's representative notified the Tribunal that a further Notice of Decision on Objection had been received by the applicant and counsel's advice was being obtained.  The letter also advised that counsel's time was limited because of commitment to a trial but that '…he ought to be in a position to respond by the end of the week'.

7.      A letter dated 20 March 2009 from the applicant's representative advised counsel had said he would be in a position to respond on Monday 23 March.  On 23 March the Tribunal telephoned the applicant's representative and a file note states that a further adjournment request would be made.  By 25 March no such request had been received and the Tribunal listed the case for dismissal on 6 April 2009 because of non compliance with the amended direction.

8.      On 6 April the Tribunal issued a further amended direction extending the time for the applicant to file its relevant material to 20 April 2009.

9.      On 10 April the partial settlement agreement was signed by the applicant and by the respondent on 16 April and the Tribunal issued a decision in the terms of the agreement on 22 April 2009.

10.     In a letter dated 21 April the applicant's representative requested a further adjournment for the filing of the material until 28 April as the result of the death of a person for whom the applicant's counsel was guardian, the Jewish passover and the continuing trial in which counsel was engaged.  On 29 April the applicant's material was filed.

11.     At the request of the applicant's representative a directions hearing listed for 28 April was adjourned to 5 May.

12.     At the direction hearing on 5 May the applicant notified the Tribunal that a further application had been filed which may necessitate the filing of further material by the applicant.  The Tribunal directed that this be completed by 19 May.  The documents were filed on 20 May.

13.     On 17 June the respondent filed the material it was directed to file in answer to the applicant's material.

14.     On 8 May the Tribunal notified the parties of a directions hearing to be held on 22 June 2009.  In a letter dated 19 June the applicant's representative notified the Tribunal that counsel was overseas between 15 June and 3 July and that he would need time to review the respondent's answering material.  The directions hearing was adjourned to 10 July.

15.     On 1 July the respondent issued a further objection notice at the directions hearing on 10 July.  The applicant's counsel stated that a further application in respect of that notice would be filed as soon as possible.  The directions hearing was adjourned to 21 August to allow this to occur.

16.     In a letter dated 20 August the applicant's representative requested the directions hearing listed for 21 August be adjourned until after 1 September owing to the counsel's illness.  The directions hearing was relisted for 8 September 2009.

17.     The further application foreshadowed in the directions hearing of 10 July was filed on 28 August because of the unavailability of the applicant's counsel who was involved in a court hearing.  The directions hearing listed for 8 September was relisted for 14 September.  On 14 September further directions were made for the applicant to file material connected with the new application by 19 October and a further directions hearing was ordered for 9 November.

18.     Some of the further material directed to be filed by the applicant by 19 October was filed on 30 October and the Tribunal was notified of an outstanding witness statement yet to be filed.  Because of the applicant's late filing of documents the respondent requested an extension of time within which to file answering documents.  The extension was granted and the respondent filed the material on 1 December 2009.

19.     On 27 November 2009 the Tribunal requested both parties to advise their availability for the months of January, February and March 2010.  Both parties advised that due to counsel unavailability January and February were unsuitable.  Additionally the applicant advised nil counsel availability for March.  A telephone directions hearing was listed for 18 December in order to set a date for hearing.  At the directions hearing the applicant's counsel notified the Tribunal that he would not be available until April.  The Tribunal expressed its concern over the delay in advancing the hearing and suggested consideration be given to instructing other counsel.  The Tribunal was informed that the cost to date was great and that to instruct other counsel would render the costs prohibitive.  The Tribunal was also informed that the applicant was prepared to delay the hearing in order to keep the same counsel.  The case was listed for conciliation on 14 April and failing the success for that it was listed for hearing for 27 to 29 April 2010.  The dates decided were said to be suitable to the parties and their counsel.

20.     In a facsimile dated 12 April the respondent advised the Tribunal that it had been contacted by the applicant's representative requesting the conciliation conference be adjourned to June and that a hearing date, if needed, be set for September or October 2010.  The reason for the request was stated to be the applicant's counsel's unavailability.  In a letter dated 12 April the applicant's representative notified the Tribunal that counsel was ill and unable to attend the conciliation conference listed for 14 April and that that illness as well as the illness of the judge before whom counsel was appearing had resulted in a delay.  The letter advised dates for the availability of counsel in June for the conciliation conference and in September and October for a hearing if it be necessary.

21.     By arrangement with the parties a directions hearing was set for the afternoon of 13 April.  At the directions hearing applicant's counsel reiterated that he was unavailable for the conciliation conference on 14 April.  Both parties notified their availability for the case to be heard in the week commencing 24 May or for the weeks commencing 14 and 21 June 2010.  The hearing was listed for 24 and 25 May.

22.     In a letter dated 11 May the applicant's representative wrote requesting that the Tribunal adjourn the hearing until early June 2010.  The letter notified that a further short adjournment was being requested because the long running trial[2] in which the applicant's counsel was appearing had been further delayed as the result of illness of the jurors and the jury were likely to retire to consider their verdict in the week commencing 17 May and that the time required may be in excess of five days.

[2] Since July 2009.

23.     A directions hearing was listed before Deputy President McDonald for 20 May 2010 at 10 am.  Upon the Deputy President being notified the directions hearing was to consider an adjournment for a matter listed for a hearing to commence on 24 May he brought the directions hearing forward to 18 May.

24.     In a letter dated 13 May the respondent opposed the granting of a further adjournment on the basis of the case having a lengthy history of delay – the majority of which was attributable to the applicant – and that the respondent would suffer prejudice as the result of incurring additional costs.

25.     At the directions hearing on 18 May counsel for the applicant submitted that the adjournment request did not arise from any fault of the applicant or its counsel.  The Tribunal accepts this as being so.

26.     It was also submitted on behalf of the applicant that it would be manifestly unjust and unfair if the adjournment was not granted at this late stage.  Counsel informed the Tribunal that the case raised complex legal issues.  Counsel informed the Tribunal that approximately six other barristers, experienced in tax law, had been approached to undertake the hearing but those available to accept instructions and prepare the case were not available to undertake the hearing and of those available to undertake the hearing none had availability to undertake the necessary preparation.  Counsel submitted that there were a limited number of competent barristers to undertake tax cases and that his client would be disadvantaged if competent counsel could not be briefed in time to prepare.  The Tribunal does not accept this submission.  It would be naive for the Tribunal to accept that there are only approximately six competent tax barristers at the Melbourne bar.

27.     The respondent maintained its opposition to the grant of the adjournment.

28.     The Tribunal in deciding to refuse the adjournment advised that the application could be renewed on the date the case was listed for hearing and that it would be up to the presiding member to determine whether or not to grant any adjournment.  The member listed to hear the case was not the same member who undertook the directions hearing on 18 May.

29.     The Tribunal had regard to the Listing and Adjournment Practice Direction issued by the President which provides in clauses 5 and 6 as follows:

5.Unavailability of counsel is not generally a sufficient reason for an adjournment to be granted.

6.The consent of the other party to an adjournment is not of itself a sufficient reason for an adjournment to be granted.

30.     The Tribunal was unpersuaded that other competent counsel with experience in taxation could not be instructed in time to undertake the hearing.  In the circumstances of this case, if a further adjournment was granted without every possibility of securing alternative representation having been exhausted, the Tribunal would be failing to satisfy the public policy considerations associated with the granting of adjournments.  There is a public interest in ensuring hearings are conducted in a timely and cost effective manner.  The Tribunal makes every effort to meet the needs of parties when dates for hearing cases are set.  In this case the dates set down for hearing were advised as being available to the parties taking into account not only witness but counsel availability.

31.     The Tribunal is satisfied that the respondent has incurred costs in respect of the listing originally made for 27 April 2010 and would incur further cost if the second application for adjournment was granted.

32.     The Tribunal is also unable to advance other cases waiting to be heard when adjournments are requested at short notice and there are public policy, including cost, considerations which make it undesirable to grant last minute adjournments before every possibility which would allow the case to proceed has been exhausted.

33.     The Tribunal is also satisfied that it raised the prospect of other counsel being briefed at an early stage[3] which ought to have alerted counsel to consider that in the event of him not being available to undertake the brief.  There was opportunity for this to be done when it became apparent at the time the second request for the hearing to be adjourned was being considered on behalf of the applicant (that is, at least by 13 May 2010).

[3] 18 December 2009.

34.     The Tribunal appreciates that a balance must be reached and that fairness and reasonableness to the party applying for the adjournment must be considered when consideration is being given to adjournment requests.  The Tribunal is, however, satisfied that every consideration has been extended to the applicant's circumstances, including the availability of counsel, not merely over the last five months during which the hearing has been ready to proceed, but throughout the proceeding.

35.     For the above reasons the application for adjournment is refused.

I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of

Signed:         .(sgd D De Andrade).............................
  Personal Assistant

Date of Telephone Directions Hearing      18 May 2010
Date of Written Decision  21 May 2010
Counsel for the Applicant  Mr N Rosenbaum
For the Applicant  Trident Asset Management
Solicitor for the Respondent  Ms L Saltnes
  ATO Legal Services Branch