Way v Deputy Commissioner of Taxation (No 1) - [2004] FMCA 372

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WAY v DEPUTY COMMISSIONER OF TAXATION (No 1)

[2004] FMCA 372

PRACTICE AND PROCEDURE – Administrative Law – application to adduce further evidence on appeal from Administrative Appeals Tribunal refused.

Applicant:

WAY

Respondent:

DEPUTY COMMISSIONER OF TAXATION

File No:

WZ 155 of 2003

Delivered on:

3 May 2004

Delivered at:

Perth

Hearing Date:

3 May 2004

Judgment of:

McInnis FM

REPRESENTATION

Applicant:

In person

Counsel for the Respondent:

Mr J.D. Allanson

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The application to adduce the further evidence is refused.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

WZ 155 of 2003

WAY

Applicant

and

DEPUTY COMMISSIONER OF TAXATION

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

In this application the applicant who seeks a review of a decision by the Administrative Appeals Tribunal (the AAT) has sought to adduce further evidence for this hearing of the appeal. The AAT decision which is the subject of a notice of appeal and as a result of orders made by His Honour Carr J on 20 August 2003 further and better particulars of the appeal had been delivered on 30 July 2003. The AAT hearing occurred on 6 May 2003.
The issue before the AAT was whether assessments of sales tax issued by the respondent for relevant periods were excessive. In the application to adduce further evidence for today’s hearing filed on 17 March 2004 a number of documents have been attached together with the appellant’s submissions in relation to this preliminary issue. The documents involve certain items of correspondence passing between the appellant, representatives of the respondent and also other items of correspondence including correspondence from the tribunal itself.
Significantly there is further an affidavit purportedly sworn by Samantha Underdown. The application to adduce further evidence is opposed. On a proper reading of the material now sought to be adduced it is my view that the material essentially seeks to further advance arguments which are referred to in the notice of appeal concerning bias, procedural fairness, issues of burden of proof and alleged misapplication of the relevant law and legislation, but to a large extent the documents go no further than perhaps providing further material in relation to those issues.
There is an attempt, certainly in the affidavit to which I have referred, to further make comment upon and provide further material in relation to issues which were before the AAT. It has been suggested during the course of submissions by the applicant in support of the application to adduce further evidence that in this matter he was not aware, at least up until the day of the hearing before the AAT, that there was a burden of proof placed upon him in matters of this kind.
Essentially he has argued that had he been so aware and indeed had he been made aware that there was a potential adverse finding to be made against him then perhaps he may well have then adduced further evidence of the kind now contained in the affidavit of Ms Underdown and/or adduced further evidence at least in part arising from the other items now sought to be adduced.
Counsel for the respondent referred the court to the respondent’s statement of facts and contentions, a document quite commonly filed and served in proceedings before the AAT. On this occasion the document is dated 10 September 2002. In paragraph 6.2 of the document which appears in the appeal book at page 135 the author states:
Pursuant to section 14ZZK of the TAA 53 the applicant has the burden of proving the assessment is excessive and that any taxation decision made should not have been made or should have been made differently.
It is also contended in the same document at paragraph (6) that the applicant has not and is unable to satisfy the tribunal that the assessment objected to by the applicant is excessive or that any taxation decision should have been made differently. It seems clear to me therefore that at least as at September 2002 advance notice was given by the respondent to the applicant in relation specifically to the burden of proof and the contention that the respondent had at that time that the applicant had not provided material which would satisfy the tribunal that the assessment objected to was excessive.
There is no doubt that in the extensive history of this matter that the applicant has and continues to hold strong views in relation to the matter. In relation to the issue of burden of proof in paragraph 6.2 of the contentions to which I have referred the applicant has indicated in general terms from the bar table, and I accept for the present purposes, that he had doubts and suspicions perhaps one might say, and certainly an unwillingness to accept whatever may have been advanced for and on behalf of the respondent, whether it be prior to or at the hearing of the matter before the AAT.
He clearly has a perception in relation to the respondent that he, in the circumstances, cannot rely upon matters raised or advanced for and on behalf of the respondent. Be that as it may I am satisfied that on a proper reading of the respondent’s statement of facts and contentions to which I have referred, and on relevant extracts from the tribunal hearing itself, it is clear that the issue of burden of proof was fairly and squarely raised both prior to and at the hearing.
I have also been referred to transcript of the tribunal hearing and in particular note the extract of the transcript as follows:-
“ASSOC PROF BARTON: Way, just one question I wanted to put to you. I got the impression from your affidavit that you were under the impression that the ATO, the Tax Office, has to prove that the sales tax is owing? --- Yes. Well I believe that the – I believe that have proved – or, alternatively – I think the Act says, if I am to be committed to the Act – prove that the assessment was excessive or unfair and unreasonable or whatever, I think. Yes. I mean - - -
That onus rests on your shoulders to prove - - - ? --- Prove. That is why I - - -
- - - that the assessment is excessive? --- Or incorrect.
Yes? --- Yes.
Are you aware of that? --- Yes, I am aware of that.
…..
And then the other thing I wanted to ask you is, are you familiar with the process by which an assessment would be raised for sales tax, in other words the actual – I know you were obviously involved in audit, because what I wanted you to do was have a look at page 79. Now, this is the letter written by ‘Way’ which, as I understand it, first mentions the amounts of 3618.97 and 1672.80. Now, if that is all the information that was available to the Department, the Tax Office, in your experience would that have been sufficient on which to raise an assessment, given that it is a self-assessing system? --- Being a self assessing system, yes,

I think - - -“
This is an appeal in relation to an error of law arising from s.44 of the AAT Act.
It is clear on the authorities that it is very rare for courts in this position to permit any party to adduce further evidence. I particularly note that in one of the items of correspondence sought to be now adduced reference is made to records of the business being totally lost by liquidators of the business of the applicant. That’s in an item of correspondence dated 24 October 2003, well after the hearing date of the tribunal. On a proper reading of the other material it is my conclusion that essentially what is sought to be done is for issues of fact to be agitated.
There is no or little material before me which would indicate that there is a proper basis for permitting that evidence to be adduced. To do so would be to permit an applicant to gather together evidence which has now been explored after the decision has been provided and in circumstances where at least part of the material may well have been obtained had the applicant understood or properly understood the obligations he had and the burden of proof he had at the time.
There is no denial of natural justice in a failure by a respondent to specifically advise an unrepresented applicant of the meaning of legislation which in this case clearly relates to the issue of burden of proof. Nevertheless, despite that lack of obligation on the part of the respondent I am satisfied that the matter was sufficiently brought to the notice of the applicant in paragraph 6.2 of the statement of facts and contentions to which I have referred to provide him with at least an opportunity to cross-check the legislation referred to and to determine for himself the issue based upon legislation readily available to a citizen.
In the circumstances I can see nothing in the material that’s now sought to be adduced which would persuade me in an application of this kind it is appropriate for the court to exercise its discretion to permit the applicant to adduce the further evidence now sought to be adduced. Accordingly the application to adduce the further evidence is refused.
To the extent that any requests for the issue of summonses to witnesses to produce documents relates to those documents which are now the subject of the application to adduce evidence, I rule that it is inappropriate for that further evidence to be adduced whether by summons or otherwise.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 3 May 2004