FEDERAL COURT OF AUSTRALIA

Sandbach v Commissioner of Taxation [2017] FCA 526

ORDERS

THE COURT ORDERS THAT:

1.    The proceedings be dismissed.

2.    The Applicant pay the Respondent’s costs of the proceedings as taxed or agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

PERRAM J:

1    This taxation appeal from the Administrative Appeals Tribunal is presently listed for hearing before me on 8 June 2017 in Melbourne. On Friday 12 May 2017, following a breach of earlier timetabling orders, the matter was relisted for a case management hearing before me at which, I had my associate indicate by email, I proposed to consider dismissing Mr Sandbach’s appeal for want of prosecution.

2    The order of which Mr Sandbach was in breach was Order 1 of the orders of 5 May 2017. It was in these terms:

‘1.    The time for the Applicant to file and serve Parts A and B of the appeal book and his outline of submissions and chronology is extended to 5 May 2017.’

3    That order was made by consent. Mr Sandbach had been due to serve Parts A and B of the appeal book on 13 April 2017 (under a timetable set by orders made on 9 March 2017). But he had not complied with that order. On 4 May 2017, I was contacted by the AGS with the consent of Mr Sandbach and was told that his submissions would be ready on 5 May 2017, that is to say, the very next day. At that time, consent orders were formulated to permit Mr Sandbach to file his submissions on that day. I then made those orders on 5 May 2017. At that time, Mr Sandbach made no suggestion that the hearing date of 8 June 2017 might be in peril.

4    In an unsworn affidavit Mr Sandbach put before me at the hearing on 15 May 2017 (but provided by email on 12 May 2017) he gives an account of events of 4 May 2017 – the day I was told his submissions would be ready on 5 May 2017 – which made it apparent that he could have had no basis to suggest that his submissions would be ready. In his unsworn affidavit, Mr Sandbach, who is a practising barrister, says that in the course of preparing his submission he has come to understand that he should not be acting on his own behalf. He says that he had this epiphany about two weeks ago (i.e. around 1 May 2017) despite this proceeding having been on foot since 11 February 2016. He then met with a lawyer on 4 May 2017 but that lawyer did not agree to take the matter. He saw another lawyer on 10 May 2017 but that lawyer did not want the case either. By then Mr Sandbach had already failed to meet the 5 May 2017 deadline he had agreed for the service of his submissions.

5    The point for present purposes is that Mr Sandbach must have known on 4 May 2017 that there was no real prospect of his submissions or Part A and B of the Appeal Book being prepared any time near 5 May 2017. Rather than bring that matter to the Respondent’s or my attention, he consented to a fresh timetable with which he must have known he was never going to comply.

6    All of this might sound a little precious on my part, but this most recent breach is by no means the first time that Mr Sandbach has found himself in this position. In fact, almost immediately upon commencing the appeal Mr Sandbach appears to have embarked on a program of breaking every timetabling order I have made. To appreciate the scale of the problem the following chronology might be noted:

7    Mr Sandbach did not indicate to me during the hearing on 15 May 2017 when his submissions would be ready. He has not yet secured representation. He submitted that the matter would run more smoothly if he were represented. He did not indicate the date by which he believes he will secure representation but seems to have been unable to secure it since 1 May 2017. This surprises me given Mr Sandbach’s experience as a barrister.

8    Mr Sandbach also told me that the Commissioner has obtained judgment on the underlying unpaid tax the subject of the appeal and has issued two bankruptcy notices in relation thereto.

9    Mr Nicholas of Counsel, for the Commissioner, informed me that he would not be prejudiced if he received Mr Sandbach’s submissions two weeks before the hearing, that is to say, by 25 May 2017 which is next Thursday. Mr Sandbach did not offer to get his submission done by then. I have considered whether I should make a self-executing order requiring Mr Sandbach to serve his submissions by then. However, self-executing orders often generate more problems than they solve and I do not think given the history of this matter that I could be sufficiently certain that they would work in this case.

10    FCR 35.32 provides:

‘35.32 Dismissing application for want of prosecution

A respondent to an application under rule 35.12 may apply to the Court for an order that the application be dismissed:

(a)     for an applicant’s failure to comply with a direction of the Court; or

(b)     for an applicant’s failure to comply with these Rules; or

(c)     for an applicant’s failure to attend a hearing relating to the application; or

(d)     for want of prosecution.’

11    FCR 1.40 provides:

‘1.40 Exercise of Court’s power

The Court may, at any stage of the proceeding, exercise a power mentioned in these Rules in the proceeding:

(a)     on its own initiative; or

(b)     on the application of a party, or a person who has a sufficient interest in the proceeding.’

12    Mr Sandbach has failed repeatedly and, if I may say, insouciantly, to comply with the orders made by this Court more or less since he commenced the appeal. The hearing has been vacated once and, if I do not now dismiss his appeal, will certainly be vacated a second time. Even now, in the face of the current circumstances, Mr Sandbach does not offer to put his house in order.

13    There is some ongoing prejudice to the Respondent to the extent that Mr Sandbach’s constant defaults cost money to meet, but beyond that the Commissioner’s position is probably not overly prejudiced beyond the delay itself. On the other hand, Mr Sandbach’s conduct of the proceedings satisfies me that he does not take the orders I make even remotely seriously. There are plenty of other matters awaiting a hearing. In my opinion, Mr Sandbach has had his fair share of this Court’s time: cf. Federal Court of Australia Act 1976 (Cth) s 37N. That provision makes clear the centrality of case management which has always been relevant in this area: Lenijamar Pty Ltd v AGC (Advances) Limited [1990] FCA 185; (1990) 27 FCR 388 at 395-96 per Wilcox and Gummow JJ. Here, Mr Sandbach has repeatedly flouted my attempts to manage this case. At some point, there must be a consequence. That point has arrived.

14    The proceedings will be dismissed with costs.

Associate:    

Dated:    16 May 2017