FEDERAL COURT OF AUSTRALIA

Bosanac v Commissioner of Taxation [2017] FCA 1057

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the costs of the respondent, to be assessed if not agreed.

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

REASONS FOR JUDGMENT

MCKERRACHER J:

OVERVIEW

1    This application is part of a substantial body of litigation between Mr Bosanac (and, on some occasions, Ms Bosanac) and the Commissioner of Taxation. In this application, Mr Bosanac strenuously takes issue with the Commissioner’s decision to issue a garnishee notice to Mr Bosanac’s employer. The central objection relates to the fact that the notice was issued at a time when the parties were preparing for Mr Bosanac’s appeal against an assessment by the Commissioner (the Pt IVC appeal) and in circumstances where the Commissioner already had the benefit of a stayed summary judgment against Mr Bosanac (the stay), as well as freezing orders against Mr Bosanac preventing him from disposing of income or assets, other than for specific purposes, essentially being sustenance and preparation for the appeal.

BASIS OF THE APPLICATION

2    Mr Bosanac applies pursuant to s 39B of the Judiciary Act 1903 (Cth), as well as by s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act). He seeks to review:

(a)    the original decision of the Commissioner to issue the notice pursuant to s 260-5 of Sch 1 to the Taxation Administration Act 1953 (Cth) (TAA) to Mr Bosanac’s employer, MyFiziq Limited on 8 February 2017 requiring it to pay the Commissioner $12,167,585.89; and

(b)    a notice of variation subsequently issued to MyFiziq on 14 February 2017 reducing the amount to be paid to the Commissioner to $2,112,421.36.

RELEVANT LEGISLATION

3    Section 39B of the Judiciary Act relevantly provides as follows:

39B    Original jurisdiction of Federal Court of Australia

Scope of original jurisdiction

(1)    Subject to subsections (1B), (1C) and (1EA), the original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth.

…

4    Section 5 of the ADJR Act relevantly provides as follows:

5    Applications for review of decisions

(1)    A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Circuit Court for an order of review in respect of the decision on any one or more of the following grounds:

(a)    that a breach of the rules of natural justice occurred in connection with the making of the decision;

(b)    that procedures that were required by law to be observed in connection with the making of the decision were not observed;

(c)    that the person who purported to make the decision did not have jurisdiction to make the decision;

(d)    that the decision was not authorized by the enactment in pursuance of which it was purported to be made;

(e)    that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;

(f)    that the decision involved an error of law, whether or not the error appears on the record of the decision;

(g)    that the decision was induced or affected by fraud;

(h)    that there was no evidence or other material to justify the making of the decision;

(j)    that the decision was otherwise contrary to law.

(2)    The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a reference to:

(a)    taking an irrelevant consideration into account in the exercise of a power;

(b)    failing to take a relevant consideration into account in the exercise of a power;

(c)    an exercise of a power for a purpose other than a purpose for which the power is conferred;

(d)    an exercise of a discretionary power in bad faith;

(e)    an exercise of a personal discretionary power at the direction or behest of another person;

(f)    an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;

(g)    an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power;

(h)    an exercise of a power in such a way that the result of the exercise of the power is uncertain; and

(j)    any other exercise of a power in a way that constitutes abuse of the power.

…

5    Section 260-5 of Sch 1 to the TAA is the source of the relevant power that the exercise of which is under attack and relevantly provides as follows:

260-5    Commissioner may collect amounts from third party

Amount recoverable under this Subdivision

(1)    This Subdivision applies if any of the following amounts (the debt) is payable to the Commonwealth by an entity (the debtor) (whether or not the debt has become due and payable):

(a)    an amount of a *tax related liability;

(b)    a judgment debt for a *tax related liability;

(c)    costs for such a judgment debt;

(d)    an amount that a court has ordered the debtor to pay to the Commissioner following the debtor’s conviction for an offence against a *taxation law.

Commissioner may give notice to an entity

(2)    The Commissioner may give a written notice to an entity (the third party) under this section if the third party owes or may later owe money to the debtor.

Third party regarded as owing money in these circumstances

(3)    The third party is taken to owe money (the available money) to the debtor if the third party:

(a)    is an entity by whom the money is due or accruing to the debtor; or

(b)    holds the money for or on account of the debtor; or

(c)    holds the money on account of some other entity for payment to the debtor; or

(d)    has authority from some other entity to pay the money to the debtor.

The third party is so taken to owe the money to the debtor even if:

(e)    the money is not due, or is not so held, or payable under the authority, unless a condition is fulfilled; and

(f)    the condition has not been fulfilled.

How much is payable under the notice

(4)    A notice under this section must:

(a)    require the third party to pay to the Commissioner the lesser of, or a specified amount not exceeding the lesser of:

(i)    the debt; or

(ii)    the available money; or

(b)    if there will be amounts of the available money from time to time—require the third party to pay to the Commissioner a specified amount, or a specified percentage, of each amount of the available money, until the debt is satisfied.

When amount must be paid

(5)    The notice must require the third party to pay an amount under paragraph (4)(a), or each amount under paragraph (4)(b):

(a)    immediately after; or

(b)    at or within a specified time after;

the amount of the available money concerned becomes an amount owing to the debtor.

Debtor must be notified

(6)    The Commissioner must send a copy of the notice to the debtor.

…

RELEVANT PRINCIPLES

6    Mr Bosanac places considerable emphasis on Denlay v Federal Commissioner of Taxation (2013) 211 FCR 344, a decision of Justice Logan, in somewhat similar circumstances in which his Honour found in favour of Denlay and against the Commissioner. The Commissioner, on the other hand, says that Denlay is relevantly distinguishable. It will be necessary to examine that decision.

7    Mr Bosanac also relies upon the Full Court decision in Southgate Investment Funds Limited v Deputy Commissioner of Taxation (2013) 211 FCR 274 where McKerracher, Jagot and Griffiths JJ said (at [77]):

It is appropriate if we say something further regarding the criteria which may apply in determining whether or not execution of a judgment debt should be stayed. We agree with the observations of Hutley JA in Mackey at 289 that the discretion to grant a stay of the execution of a judgment debt based upon a taxation assessment involves “an open-ended discretion” and that it “is not possible to work out in advance all possible bases for the exercise of such a discretion and it would not be proper even to attempt to do so”. Bearing in mind those salutary words and without wishing to be prescriptive or exhaustive, we consider that it is possible, however, to extract from the caselaw the following general principles which guide the exercise of that discretion:

(a)    the power to grant a stay should be exercised sparingly and the taxpayer bears the onus of persuading the Court that a stay ought to be granted in the particular circumstances;

(b)    great weight must be given to the clear legislative policy manifested in provisions such as ss 14ZZM and 14ZZR of the TAA which give priority to the recovery of taxation revenue notwithstanding that a taxpayer has a Pt IVC proceeding on foot. The Commissioner is placed by the legislation in a position of special advantage and is generally free to pursue recovery proceedings despite the pendency of Pt IVC proceedings;

(c)    the merits of pending Pt IVC proceedings may be a relevant consideration to be taken into account in the exercise of the discretion, but the court should not attempt to determine the merits unless it has sufficient material before it to do so and it should avoid speculation;

(d)    in cases where a judge is unable to form even a tentative view of the strength of Pt IVC proceedings, it is unlikely that the judge's discretion in refusing a stay will miscarry by reason only of the judge being unable on the material before him or her to reach a view as to the taxpayer's prospects of success in having the assessment overturned;

(e)    it is too narrow a view of the discretion to grant a stay of proceedings or execution merely because Pt IVC proceedings are pending, or because on review of those proceedings there appears to be an arguable case or complex questions to be determined by the AAT or the Court;

(f)    that is not to say, however, that the outcome of Pt IVC proceedings has to be certain in the sense that they are bound to succeed or fail. That puts the bar too high;

(g)    in cases where the Court considers that it is in a position to assess the merits of pending Pt IVC proceedings and that it is appropriate to do so, the weight to be attached to those merits will vary according to the relative strength of the merits. But the taxpayer needs to have more than merely an arguable case;

(h)    similarly, more weight would be given to the merits factor if the case is one where the Commissioner has abused his position or it is clear that the Commissioner is endeavouring to collect tax in defiance of a decision of the High Court or other superior court which is precisely in point;

(i)    due acknowledgment should be given to the asperity with which provisions such as ss 14ZZM and 14ZZR may operate, but in appropriate circumstances a court might consider that a stay is warranted in cases of extreme hardship to a taxpayer, noting however that:

(i)    the mere obligation to pay income tax of itself does not impose extreme hardship; and

(ii)    the possibility that the taxpayer may be bankrupted is generally not of itself an extreme hardship, however, different considerations may arise if, for example, it is demonstrated that the execution of a judgment debt would deprive the taxpayer of the financial resources needed to prosecute extant Pt IVC proceedings;

(j)    irrespective of the merits of pending Pt IVC proceedings, a stay will not usually be granted where the taxpayer is party to a contrivance to avoid liability to pay the tax; and

(k)    other considerations may need to be taken into account in determining whether to exercise the discretion in a particular case, such as any conduct on the part of the taxpayer or the Commissioner which impacts upon the efficient and expeditious conduct of Pt IVC proceedings.

8    Underlying both cases, Mr Bosanac says, is the constitutional imperative that the Commissioner must not make the final determination of his own assessments such that they are incontestable, but rather the Ch III judiciary has that role if the taxpayer invokes its jurisdiction: Deputy Commissioner of Taxation (NSW) v Brown (1958) 100 CLR 32 per Dixon CJ (at 40-41). In Federal Commissioner of Taxation v Futuris Corporation Ltd (2008) 237 CLR 146 Gummow, Hayne, Heydon and Crennan JJ (at [9]-[10]) (footnotes omitted) said:

9    The recourse to the Federal Court (and thereafter by special leave, to this Court) which is provided by Pt IVC of the Administration Act meets the requirement of the Constitution that a tax may not be made incontestable because to do so would place beyond examination the limits upon legislative power.

10    This state of affairs has two pertinent consequences. The first is that under the system provided by Pt IVC being, as to the Federal Court, a law supported by s 77(i) of the Constitution, the contestability of assessments made by the Commissioner is not confined to that measure of judicial review for jurisdictional error which is provided by s 75(v) of the Constitution and by s 39B of the Judiciary Act. The second consequence is that, as a matter of discretion, relief under s 75(v) and s 39B may be (and often will be) withheld where there is another remedy provided by Pt IVC.

9    In short, Mr Bosanac says the relevant guiding principles are that:

(a)    if a decision contains jurisdictional error, it is not a decision at all and therefore must be set aside (Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 (at [76]));

(b)    the ‘developing trend’ in applications made pursuant to s 39B of the Judiciary Act and s 75(v) of the Constitution is for the Court to merely identify that there has been jurisdictional error without trying to categorise it (relying on the reasoning of Gageler and Keane JJ in Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22 (at [29]-[35])); and

(c)    where other jurisdictional errors are not identified or cannot be specifically identified, jurisdictional unreasonableness is a ‘catch-all’ for a broad category of jurisdictional error: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 per Hayne, Kiefel (as her Honour then was) and Bell JJ (at [63]-[76]) and French CJ (at [23]-[31]).

10    Mr Bosanac, he says, has followed the approach in Wei, so as to focus on general jurisdictional error, the key error being the failure to consider certain items. Additionally, it is said the Commissioner proceeded on a manifest misunderstanding of the facts and the Commissioner failed to give due regard to the freezing orders and the stay that was in place.

11    Finally, Mr Bosanac also makes an argument based on the common law in relation to ‘controlled money’ accounts.

RELEVANT PROCEDURAL HISTORY

12    On 17 June 2015, the Commissioner commenced proceedings (WAD 291 of 2015) against Mr Bosanac (and also Ms Bosanac) seeking declarations of amounts due and payable by the Bosanacs and judgments against each in respect of their liability arising from an assessment by the Commissioner.

13    On 17 June 2015, I made freezing orders on the application of the Commissioner. The orders were varied on 22 October 2015. In July 2015, a protocol was agreed between the parties by which Mr Bosanac deposited his earnings into accounts controlled by the freezing orders (the Protocol). Mr Bosanac says that the amounts due to be deposited into those accounts were in the nature of ‘controlled monies’. On 29 April 2016, I gave summary judgment in favour of the Commissioner.

14    The Pt IVC appeal was initiated by Mr Bosanac on 1 August 2016. It was set down for hearing to commence on 20 March 2017 by directions made on 22 September 2016. I ordered a stay of enforcement of the summary judgment on 12 August 2016 in Commissioner of Taxation v Bosanac (No 2) [2016] FCA 945 (Bosanac (No 2)). The parties, of course, had general liberty to apply for variation of those orders.

15    On 23 November 2016, there were further variations and orders made as to the directions in the Pt IVC appeal.

16    On 3 February 2017, an order was made that the Commissioner file and serve on Mr Bosanac a draft index for the book of agreed documents by 10 February 2017 for the purposes of the Pt IVC appeal.

17    On 14 February 2017, the Commissioner made the decision.

18    In the amended originating application for judicial review filed in these proceedings, Mr Bosanac seeks a writ of certiorari directed to the Commissioner quashing the decision and the notice, an injunction or writ of prohibition restraining the Commissioner from acting upon the notice or issuing any further purported notice, an ancillary order requiring any monies paid under the notice to be refunded and costs. The need to pursue the urgent interlocutory relief in relation to orders of the nature described above fell away once orders were made preventing the Commissioner from acting upon the notice pending further orders of the Court.

GROUNDS OF REVIEW

19    The grounds on which the relief is claimed are extensive and for completeness they are set out as follows, although the arguments advanced are more specific:

B.2.    Grounds of Application

1.    As particularised in respect of the Judiciary Act application a subordinate officer of the Commissioner rendered the purported Decision and purportedly issued a Garnishee Notice.

Particulars

(1)    On 8 February 2017 a subordinate officer of the Commissioner purported to issue the Garnishee Notice to Myfiziq Limited for the amount of $12, 167,585.89.

(2)    Subsequently, on 14 February 2017, a subordinate officer of the Commissioner purported to revise the Garnishee Notice amount to Myfiziq Limited from $12,167,585.89 to $2,112,421.36 ("the Amount").

2.    The Decision is a decision to which the Administrative Decisions (Judicial Review) Act (Cth) ("the AD(JR) Act") applies.

3.    The Decision is subject to review pursuant to one or more of section 5(1) of the AD(JR) Act having regard to one or more of, or a combination thereof:

a.    That a breach of the rules of natural justice occurred in connection with making the Decision (s. 5(1)(a)).

b.    That the making of the Decision was an improper exercise of power conferred by the enactment in pursuance of which it was purported to be made ((s.5(1)(e), which is a reference to the categories set out in s. 5(2)).

c.    That the Decision involved an error of law (s. 5(1)(f)).

d.    That the Decision was otherwise contrary to law (s. 5(1)(f)).

4.    The Commissioner has not at this time provided reasons for the Decision.

Particulars

(1)    The Commissioner was requested to provide his reasons by way of email of the solicitor of [Mr Bosanac] at 12:26am on 20 February 2017.

5.    The Commissioner has via letter of his solicitor dated 14 February 2017 set out some considerations which were purportedly taken into account ("the 14 February 2017 Letter").

Particulars

(1)    On 14 February 2017, the Commissioner did not seek to maintain the original Garnishee Notice amount but sought to reduce the original Garnishee notice amount to the Amount.

(2)    The Amount is purportedly the amount resulting from the amended assessments of 8 June 2016. The amended assessments of 8 June 2016 were rendered as a result of the objection decision for [Mr Bosanac] on 1 June 2016.

(3)    The [Commissioner] cites his reasons in paragraphs 7 and 8 of the 14 February 2017 Letter.

(4)    The 14 February 2017 Letter states at paragraph [8.1] that "Mr Bosanac has not lodged any objection to the amounts assessed under the 8 June 2016 amended assessments and the amounts are not otherwise contested by him" and [8.2] that [Mr Bosanac] "has not contested the amounts under the 8 June 2016 amended assessments". This is manifestly incorrect - the amendments are made in consequence of an objection decision pursuant to s. 170(1) Item 9 of the Income Tax Assessment Act 1936 (Cth) ("ITAA36'') and are part of the objection decision which is subject to an appeal filed in the Federal Court on 1 August 2016 pursuant to [Mr Bosanac's] election made under s. 14ZZ Taxation Administration Act 1953 (Cth) ("TAA').

(5)    The 14 February 2017 Letter states at paragraph [8.2] that [Mr Bosanac] "has made no attempt to make any payment of the uncontested amounts". Whilst the Commissioner is manifestly incorrect in referring to the amounts arising from the 8 June 2016 amended assessments as uncontested, [Mr Bosanac] has made an attempt to pay uncontested amounts: as is particularised as follows:

a.    [Mr Bosanac] is being paid by his employers as an employee.

b.    As an employee [Mr Bosanac] is suffering PAYG withholding from his salary pursuant to the scheduled rates under the income tax law.

c.    Notwithstanding such PAYG withholding, [Mr Bosanac] is unlikely to have any income taxation liability for years on and after the issuance of the amended assessments around 17 June 2015 due to the operation of s. 25-5(1)(c) of the Income Tax Assessment Act 1997 which provides for the deduction of general interest charge and shortfall interest charge where the deductible interest being accrued by [Mr Bosanac] is likely to be in the order of $1.2 million per annum, significantly exceeding any taxable income of [Mr Bosanac], as reported to the Commissioner.

6.    The Commissioner has by what is not set out in the 14 February 2017 Letter not considered relevant or required circumstances.

Particulars

(1)    The Decision did not consider that amounts which were within the original amount of the garnishee notice were subject to a stay order of the Federal Court of Australia where:

a.    The stay order of the judgment of [Mr Bosanac] was ordered by the Federal Court on 12 August 2016 ("Stay Order"). The judgment of [Mr Bosanac] was ordered on 29 April 2016 being "$9,344,111.89 in respect of his liabilities for income tax, shortfall interest charge, administrative penalties and general interest charge accrued up to 1 December 2015 ("the Judgment Amount").

b.    The original amount of the Garnishee notice included the Judgment Amount.

(2)    The Decision did not consider that the Stay Order was obtained by contest and was not a consensual matter where:

a.    The Stay Order of 12 August 2016 was obtained from the Court after the matter was contested before the Court.

(3)    The Decision did not consider whether the Amount [of $2,112,421.36] was also indirectly stayed as a result of the order of the Court of 12 August 2016 where:

a.    The Stay Order of 12 August 2016 was ordered after the amended assessments of 8 June 2016.

b.    The Stay Order was made pursuant to the decision of the Court of 12 August 2016 at [20], "pending the outcome of the present appeal process", where

i.    The Amount was also subject to the appeal process referred to by the Court (as noted, the amended assessments of 8 June 2016 were in consequence of the objection decision of 1 June 2016, and the objection decision of 1 June 2016 is subject to the appeal process commenced 1 August 2016);

ii.    The Court had had consideration of the entire appeal being conducted as a result of affidavit evidence tendered to the Court, where the Court noted at [11] of its 12 August 2016 decision, "By way of an annexure to an affidavit of the solicitor for the Bosanacs filed 11 August 2016, Mr Roos confirmed his professional opinion that the primary tax liability of Mr Bosanac is calculated at $2.2 million and $2.3 million. This updated evidence is on the basis of the Pt IVC appeal recently filed by Mr Bosanac and is notably consistent with Mr Roos' earlier estimate"; and

iii.    The Court's primary concern was that [Mr Bosanac] may be exposed to bankruptcy prior to the completion of his taxation appeal, where the Court noted at [18] of its 12 August 2016 decision: "Given that the Commissioner has declined to give any undertaking not to pursue bankruptcy proceedings, and given that it is well recognised that this is a conventional means of proceeding by the Commissioner on obtaining a judgment, it appears to be highly likely, as in Denlay, that Mr Bosanac would be exposed to bankruptcy".

c.    There is no evidence that the Commissioner gave consideration to whether the Amount was within the ambit of the Stay Order.

(4)    The Decision did not consider whether the Amount [of $2,112,421.36] was also indirectly stayed as a result of the purpose of the stay order being to avoid bankruptcy occurring by a side wind at the hands of a private creditor whilst [Mr Bosanac] is appealing the objection decision of 1 June 2016:

a.    Due to the existence of the freezing orders issued by the Court on 17 June 2015 in WAD 291 of 2015 and the protocol referred to in paragraph 7(b) below ("the Freezing Orders") which require that [Mr Bosanac] report his income and expenditure to the Commissioner, the Commissioner has at all times been cognisant of [Mr Bosanac's] sources of income and [Mr Bosanac’s] monthly expenditure.

b.    The Commissioner at all relevant times has been wholly aware due to reporting to the Commissioner, including Annexure A of the Orders of 17 June 2015, that [Mr Bosanac] and his estranged spouse have significant mortgage debt.

c.    The Commissioner at all relevant times has been wholly aware, as a result of periodic reporting to the Commissioner as a result of the Freezing Orders (as amended) that [Mr Bosanac] has significant monthly payments to mortgagees.

d.    The Commissioner at all relevant times has been wholly aware as a result of periodic reporting to the Commissioner as a result of the Freezing Orders (as amended) that [Mr Bosanac] has significant monthly payments to other lenders.

e.    The Commissioner at all relevant times has been wholly aware as a result of periodic reporting to the Commissioner as a result of the Freezing Orders (as amended) that [Mr Bosanac] has significant monthly payments to other lenders.

f.    The Commissioner at all relevant times has been wholly aware as a result of periodic reporting to the Commissioner as a result of the Freezing Orders (as amended) that [Mr Bosanac] has regular income from Myfiziq Limited in the form of salary which he uses to discharge these mortgage payments.

g.    It is within the general knowledge of the Commissioner that if [Mr Bosanac] is denied income from regular sources to meet the mortgage payments and other lenders that [Mr Bosanac] may suffer a bankruptcy event as a result of defaulting to a private creditor.

(5)    The Commissioner has not given consideration to the Stay Order representing the determination of the Court that the appeal be "diligently pursued" where:

a.    The desire of the Court concerning the progress of the Appeal is referred to inter-alia, in the 12 August 2016 decision at paragraph [19] that it be "diligently pursued".

b.    The Commissioner did not consider that the Decision or the Garnishee Notice would delay the preparation of the trial in WAD349/2016 due to start on 20 March 2016.

c.    The Commissioner did not consider that the Decision or the Garnishee Notice would likely distract the focus of [Mr Bosanac's] lawyers away from the Appeal.

d.    The Commissioner did not consider that the Decision or the Garnishee Notice may, in being responded to, consume the funds of [Mr Bosanac] thereby delaying the preparation of the appeal.

(6)    The Commissioner did not consider whether the Commissioner was bound to seek the leave of the court pursuant to either or both of the Stay Order or the Freezing Orders prior to making the Decision, where:

a.    The matters set out in this paragraph 6 demonstrate that the Court has exercised jurisdiction in respect of the Stay Order for which the Court has allowed general liberty to apply.

b.    The matters set out in this paragraph 6 demonstrate that the Court has exercised jurisdiction in respect of the Freezing Orders (which are also information reporting orders) for which the Court can be considered to allow general liberty to apply.

c.    The Commissioner did not consider whether the leave of the Court was required, or whether the Court needed to be informed, prior to making the Decision.

(7)    The Commissioner has not given consideration to the Freezing Orders and the submission to the Court's jurisdiction in respect of the Freezing Orders (and the related information reporting) where:

a.    The Freezing Orders require that [Mr Bosanac] not dispose of his assets except under the terms of the freezing orders. This includes monies that [Mr Bosanac] holds in bank accounts from time to time pursuant to the orders of the Court dated 17 June 2015.

b.    The Commissioner has submitted to the jurisdiction of the Court in controlling the assets of [Mr Bosanac].

c.    The Commissioner has given an undertaking that "without the leave of the Court" that it will not "use any information obtained as a result of the "Freezing Order" for the purpose of any civil or criminal proceedings ... other than in this proceeding [undertakings at (6) of 17 June 2015 order].

d.    The Commissioner has not given consideration that the Decision and the Garnishee Notice are "jumping the gun", by taking matters into his own hands, by seeking to obtain funds that would otherwise come under the control of the Freezing Orders and the jurisdiction of the Court.

(8)    The Commissioner has not given consideration that the Court in granting the Freezing Orders has included an exception for living expenses and legal fees where:

a.    The orders of the Court as to the Freezing Orders allow the payment of authorised expenditure, including for ordinary living expenses and legal fees.

b.    The consideration of ordinary living expenses and legal fees is integral to the Court's decision to grant and continue the Freezing Orders.

c.    The Commissioner did not consider the impact of the Garnishee Notice disturbing the status quo maintained by the Freezing Orders.

(9)    The Commissioner has not applied relevant paragraphs of his own practice statement PS LA 2011/18 where:

a.    The Commissioner did not consider paragraph [108] of PS LA 2001/18 where the Commissioner states that the "ATO will not usually seek to garnishee more than 30 cents in the dollar of the amount of salary or wages payable".

b.    The Commissioner did not consider paragraph [112] of PS LA 2001/18 where the Commissioner states that the [sic] "the Commissioner will consider whether a garnishee would significantly prejudice the tax debtor's rights in pursuing ... [taxation] appeals".

(10)    The Commissioner has not considered that [Mr Bosanac] is paying off the tax debt, where:

a.    [Mr Bosanac] is being paid by his employers as an employee.

b.    As an employee [Mr Bosanac] is suffering PAYG withholding from his salary pursuant to the scheduled rates under the income tax law.

c.    Notwithstanding such PAYG withholding, [Mr Bosanac] is unlikely to have any income taxation liability for years on and after the issuance of the amended assessments around 17 June 2015 due to the operation of s. 25-5(1)(c) of the Income Tax Assessment Act 1997 which provides for the deduction of general interest charge and shortfall interest charge where the deductible interest being accrued by [Mr Bosanac] is likely to be in the order of $1.2 million per annum, significantly exceeding any taxable income of [Mr Bosanac], as reported to the Commissioner.

(11)    There is no basis for amending the above pleadings in any respect in consequence of Officer AZ's preparation of purported reasons entitled "Statement of Reasons pursuant to section 13 of the Administrative Decisions (Judicial Review) Act 1977" and dated 20 March 2017 ("the Purported Reasons" ).

a.    These proceedings were filed on 20 February 2017.

b.    The Purported Reasons are dated 20 March 2017, 28 days after these proceedings were filed.

c.    The Purported Reasons are not before the Court.

d.    To clarify and further to (11)(c) the Purported Reasons have not been annexed to any affidavit of the purported decision maker (i.e. Officer AZ).

e.    The Purported Reasons dated 20 March 2017 do not annexe any contemporaneous notes or memoranda which Officer AZ may have been required, pursuant to Commissioner's corporate management practice statements, to make contemporaneously at the time of the purported garnishee notice of 8 February 2017 and/or the purported revision of that notice on 14 February 2017.

f.    The case law of the Commonwealth is that where purported reasons are prepared after the filing of judicial review proceedings, such purported reasons can only be admitted before a Court and taken into consideration if subject to being tested by way of the purported decision maker annexing them to an affidavit and making himself or herself available for cross-examination by [Mr Bosanac]: Nezovic v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (with Corrigendum dated 12 November 2003) [2003] FCA 1263 (6 November 2003) at [55-59] per French J (as the recently retired Chief Justice of the Commonwealth then was).

g.    Further to (11) (f), the common law of the Commonwealth, and as a matter of common sense for the administration of justice is such that there is no requirement for a plaintiff bringing proceedings to amend his statement of claim because the defendant (even if that defendant be a subordinate officer of the executive government as the rule of law so requires it must) has handed the plaintiff an unsworn letter or document contradicting his statement of claim.

h.    The [Commissioner] has been repeatedly invited by [Mr Bosanac] to put the Purported Reasons before the Court as annexed to an affidavit of Officer AZ and has not (yet) done so.

7.    In furtherance of the claim that a breach of the rules of natural justice occurred in connection with making the Decision (s. 5(1)(a)), [Mr Bosanac] claims:

a.    [Mr Bosanac] repeats the matters particularised at paragraph 5 and paragraph 6.

b.    The Freezing Orders ordered by the Court in WAD291 of 2015 in conjunction with the protocol agreed between the Parties as referenced in the [Commissioner’s] letter of 9 July 2015 effectively operate so that [Mr Bosanac] deposits his earnings into controlled accounts to bring the control of inbound monies within the jurisdiction of the Court.

c.    The Freezing Orders ordered by the Court in WAD291 of 2015, in conjunction with the protocol agreed between the Parties as referenced in the [the Commissioner’s] letter of 9 July 2015, result in [Mr Bosanac] reporting on his monthly expenditure to the [Commissioner] through the provision of copy bank statements and explanatory notes to the [Commissioner] and the [Commissioner] has accepted such reporting.

d.    The Stay Orders bring the ability of [Mr Bosanac] to prosecute his appeal within the general jurisdiction of the Court.

e.    The Freezing Orders issued on the ex parte application of the [Commissioner] restrict the liberties of [Mr Bosanac] and were only obtained subject to the usual caveat that [Mr Bosanac] would be allowed to undertake authorised expenditure .

f.    In the circumstances the Commissioner was required to afford a fair hearing to [Mr Bosanac] prior to making the Decision or issuing the Garnishee Order.

8.    In furtherance of the claim that the making of the Decision was an improper exercise of power conferred by the enactment in pursuance of which it was purported to be made ((s. 5(1)(e), which is a reference to the categories set out in s. 5(2), [Mr Bosanac] sets out:

a.    [Mr Bosanac] repeats the matters particularised at paragraph 5 and paragraph 6.

b.    The matters set out at s. 5(2) include failure to take into account a relevant consideration (s. 5(2)(b)), failure to take into account relevant policy (s. 5(2)(f)) and jurisdictional unreasonableness (s. 5(2)(g)).

c.    The matters particularised at paragraph 6 were not considered by the Commissioner.

d.    The matters particularised at paragraph 6 were required to be considered by the Commissioner.

e.    The failure of the Commissioner to consider the matters particularised at paragraph 6 resulted in the Decision being jurisdictionally unreasonable pursuant to s. 5(2)(g).

f.    Alternative to 8(e), the Commissioner's decision in light of the matters particularised at paragraph 5 and paragraph 6 was wholly unreasonable.

g.    Pending the provision of written reasons by the Commissioner, [Mr Bosanac] notes that further grounds may be alleged.

9.    In furtherance of the claim that the Decision involved an error of law (s. 5(1)(f)), [Mr Bosanac] sets out:

a.    [Mr Bosanac] repeats the matters particularised at paragraph 5 and paragraph 6.

b.    The failure of the Commissioner to consider the matters particularised at paragraph 6 resulted in the Decision being infected with an error of law contrary to s. 5(1)(f).

10.    In furtherance of the claim that the Decision was otherwise contrary to law (s. 5(1)(f)), [Mr Bosanac] sets out:

a.    [Mr Bosanac] repeats the paragraphs for paragraph 8.

11.    In furtherance of the claim for a stay pursuant to s. 15:

a.    [Mr Bosanac] repeats the matters particularised at paragraph 5 and paragraph 6.

b.    [Mr Bosanac] says a stay is necessary to ensure that he does not default on automatic drawings including mortgage payments.

c.    There is uncertainty how monies would be repaid from consolidated revenue of the Commonwealth if first subject to the Garnishee Notice.

EVIDENCE FOR MR BOSANAC

20    Mr Bosanac relies upon several affidavits in support. The first of those is an affidavit sworn by his solicitor, Mr Blow, on 17 March 2017 referring to the exceptions provided in the freezing orders which include:

(a)    the payment of ordinary living expenses;

(b)    the payment of reasonable legal expenses;

(c)    dealing or disposing with assets with the prior written consent of the Commissioner in the ordinary and proper course of business;

(d)    paying business expenses bona fide and properly incurred;

(e)    paying amounts to the Commissioner in tax liabilities; and

(f)    in discharging obligations bona fide and properly incurred under a contract entered into before the freezing orders, subject to giving two working days’ written notice to the Commissioner of the particulars of the obligation.

21    By subsequent variation of the freezing orders, accountancy expenses were also provided for in a regime of providing written certificates setting out the expenses. A similar regime applied to written certificates setting out share trading activities, which is part of the business in which Mr Bosanac is engaged. Mr Blow also refers to the Protocol identifying a single joint bank account to be used for the purposes of the orders, the regular provision of copy bank statements for that account to the Commissioner along with explanations for any payments exceeding $250. Mr Blow produced a copy of his email to the Australian Government Solicitor (AGS) dated 23 September 2016, attaching copy bank statements pursuant to that regime.

22    Mr Blow swore a further affidavit on 17 May 2017. By this affidavit, he annexed correspondence outlining exchanges on a variety of procedural matters, including issues as to admissibility of certain evidence and revealing difficulties between the parties in reaching agreement on most matters. It specifically revealed a debate about whether the decision maker should be present at the hearing for cross-examination. In the end, he was.

23    In addition, Mr Bosanac relied upon an affidavit of Ms Provost of 14 February 2017 and Mr Blow of 16 February 2017. He did not rely on an earlier affidavit of Mr Blow of 15 February 2017.

24    Ms Provost’s affidavit of 14 February 2017 was filed in support of Mr Bosanac’s original interlocutory application in relation to the notice, filed on 14 February 2017 in WAD 291 of 2015. She deposed to her belief that the notice was adversely affecting Mr Bosanac’s ability to meet legal fees as well as his ability to pay day-to-day expenses. She also annexed correspondence from Mr Bosanac’s solicitors to the AGS outlining Mr Bosanac’s original position in relation to the issuance of the notice.

25    Mr Blow’s affidavit of 16 February 2017 was intended to provide information requested by the Court concerning the financial impact of the notice on Mr Bosanac as well as to confirm what financial information had been submitted to the Australian Taxation Office (ATO) via the AGS. Mr Blow deposed that Mr Bosanac was travelling abroad for work and therefore it was impossible to obtain a sworn affidavit from him personally. Consequently the information was contained within Mr Blow’s affidavit as a matter of necessity. The affidavit annexed correspondence between Mr Bosanac and the AGS as examples of the financial information that was being provided by Mr Bosanac to the AGS. Mr Blow also deposed to Mr Bosanac’s outstanding legal fees as well as his belief as to Mr Bosanac’s monthly expenditure, monthly salary income and the payment of legal and accounting fees.

Objections to evidence of Mr Bosanac

26    First, the Commissioner objected to the admissibility of part of the evidence on hearsay grounds. In relation to Mr Blow’s affidavit of 16 February 2017, objection was taken to paras 6-15 inclusive. The objection to para 11 was confined to the reference to RAB-1 and in para 15 the objection was confined to the penultimate and last sentence of Mr Bosanac’s certificate. Objection was also taken to para 17, para 18 (as to the first and last sentences), para 20 and annexures RAB-1, RAB-2, RAB-3, RAB-4. Similarly, objections were taken to Mr Blow’s affidavit of 17 March 2017, namely, para 9(c), RAB-3 and RAB-4 and in Ms Provost’s affidavit, para 5 and para 6 and annexure TMP-1.

27    In my view, the objection on hearsay grounds in relation to all this material was well made out if the affidavits were to be relied upon in order to establish the truth of the matters thereto deposed. It appears to me that the formalities of proving the matters there deposed to have not been satisfied.

28    As I understand the position insofar as the hearsay objections are concerned, Mr Bosanac relies upon the material in order to provide evidence as to what the Commissioner was told about Mr Bosanac’s finances. There appears to be an acceptance and, in any event, it must be the case that the material cannot be relied upon in a hearsay form to establish the truth of the content. The Commissioner, however, raises the concern that this distinction does not assist Mr Bosanac because Mr Bosanac has not limited his case to the allegation that the decision maker failed to take into account what Mr Bosanac, by his advisors, had informed the Commissioner. Rather, he asserts that the Commissioner proceeded on ‘a manifest misunderstanding of the facts’. The Commissioner argues that to the extent Mr Bosanac alleges the existence of facts that were required to have been taken into account, but were not, the onus is on him to prove those facts. Similarly, the Commissioner argues, if what is alleged is that there was no evidence to justify the making of the decision, Mr Bosanac bears the onus of proving what the true factual position was. Mr Bosanac needs to demonstrate this if he seeks to establish that the facts relied upon by the decision maker did not exist. In neither form of the argument is proof of what is asserted, as distinct from the truth, capable of being relied upon as proof of the fact. The Commissioner makes the point that, by way of an example, Mr Bosanac argues that the Commissioner failed to take into account and did not consider that Mr Bosanac was, on the evidence held by the Commissioner, ‘living hand to mouth’. That submission must be predicated upon the assumption that Mr Bosanac in fact did not have any other source of income. It is clear the decision maker reached the conclusion based on the matters referred to in the reasons that Mr Bosanac did have other sources of income. No admissible evidence has been led by Mr Bosanac to contradict that conclusion.

29    The Commissioner points out that it was open for Mr Bosanac to adduce direct evidence of his financial circumstances to the extent necessary to prove the allegations in this application. Mr Bosanac has chosen not to do so, despite having relied on an affidavit as to his financial circumstances, filed in WAD 291 of 2015, in successfully seeking an interlocutory stay of the variation. The Commissioner argued that it is open to the Court to draw from the failure to adduce such evidence that it would not support Mr Bosanac’s case, relying on Jones v Dunkel (1959) 101 CLR 298. The Commissioner does not, however, object to the admission of the certificates from Mr Blow and from Mr Bosanac’s accountant Mr Roos, as to his fees, nor to the Court having regard to the orders and reasons for the decision made in WAD 291 of 2015, including the original freezing orders made on 17 June 2015, the orders varying the freezing orders made on 22 October 2015 and the stay.

30    In my view, the Commissioner’s contentions on the state of the evidence should be accepted. It did not appear that counsel for Mr Bosanac advanced any significant argument against those objections, seeming to contend that the arguments sought to be advanced could be made without relying on the admissible truth of the financial position from which Mr Bosanac contends. There is difficulty in this approach in relation to some of Mr Bosanac’s arguments, if not all of them.

31    Objection was also taken to para 5(a) and RAB-5 of the Mr Blow’s affidavit of 17 May 2017 on the grounds of relevance. However, during the hearing Mr Bosanac advised that he no longer relied on that material.

EVIDENCE FOR THE COMMISSIONER

32    The Commissioner has relied upon one affidavit, being an affidavit of a senior officer to whom the parties have referred as Director AZ. I will adopt the same terminology. Director AZ attended for cross-examination. He is a senior ATO official.

33    Director AZ refers to the history described above and the request received on 20 February 2017 for a statement of reasons to be given for the decision.

34    He finalised his written statement of reasons on 20 March 2017. In the statement of reasons he deposed to them being the reasons at the time of deciding to issue the notice and the variation. I will refer to the statement of reasons in a moment, but Director AZ also says that in making his decision that he had regard to and relied on information and documents referred to in the reasons (all of which were annexed to his affidavit), including the following:

    an amended notice of assessment issued on 8 June 2016 to Mr Bosanac in respect of the income years ended 30 June 2006 to 30 June 2013 inclusive. A copy of each of the amended assessments, under the hand of the Deputy Commissioner with the tax file number deleted for privacy reasons;

    Westpac Banking Corporation account statements for account ‘V & B Bosanac Classic Plus' account number XXX dated between 14 January 2016 and 21 September 2016;

    an affidavit sworn by Mr Bosanac on 5 November 2015 in the appeal proceedings;

    Australian Securities and Investments Commission (ASIC) extracts in respect of Dominion Asset Pty Ltd, Activistic Holdings, Activistic Limited and MyFiziq obtained electronically on or about 8 February 2017;

    a CEO Remuneration Report lodged with the Australian Stock Exchange (ASX) by MyFiziq on 6 December 2016; and

    quarterly business activity statements lodged by Mr Bosanac in respect of the September 2016 and December 2016 quarters.

35    Director AZ produced and relied upon information extracted from the ATO database of its business records, including:

    the integrated core processing (ICP) system, which records all liabilities, payments and credits for taxpayers’ income tax accounts from and including 15 January 2010. The information recorded on the ICP is input into the system either manually by employees of the ATO, based on information furnished to the ATO by the taxpayer through their tax returns, or automatically if a taxpayer lodges their returns electronically. The ICP records liabilities, payments and credits in chronological order and does not show how individual payments and credits have been allocated between different liabilities on the same account. In the course of making his decision, Director AZ reviewed the electronic information stored in the ICP in respect of Mr Bosanac and Dominion Investments (WA) Pty Ltd. He produced printouts with his affidavit; and

    the ‘Mainframe’ system, which is an older equivalent of the ICP system. In the course of making his decisions, Director AZ reviewed the electronic information stored in the Mainframe in respect of Mr Bosanac and Dominion Investments (WA), printouts of which were also attached to his affidavit.

36    Director AZ swore to the fact that he did not make any contemporaneous notes in the course of making his decisions to issue the notice and the variation as there was no requirement to prepare written reasons for his decisions.

The reasons

37    The statement of reasons provided by Director AZ pursuant to s 13 of the ADJR Act sets out the following:

STATEMENT OF REASONS PURSUANT TO SECTION 13 OF THE ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW) ACT 1977

NOTICES UNDER SECTION 260-5 OF SCHEDULE 1 TO THE TAXATION ADMINISTRATION ACT 1953

The Decisions

1.    The decisions with respect to which reasons have been requested are the decisions made on 8 February 2017 to issue the notice pursuant to section 260-5 of Schedule 1 to the Taxation Administration Act 1953 ("the TAA'') ("the Notice") to MyFiziq Limited ("MyFiziq") on 8 February 2017 requiring it to pay to the Commissioner $12,167,585.89 in respect of money owed or may later be owed by MyFiziq to Mr Vlado Bosanac ("[Mr Bosanac]"). A notice of variation was subsequently issued to MyFiziq on 14 February 2017 reducing the amount to be paid to the Commissioner to $2,112,421.36.

The Decision Maker

2.    I, [Director AZ], director in the Debt Business Line in the Melbourne office of the Australian Taxation Office ("the ATO") am the decision maker in respect of the decisions referred to in the previous paragraph.

3.    In making the decisions to issue the notices, I was acting as a duly authorised officer of the Commissioner.

Background

4.    In or around March 2014, the ATO commenced an audit into [Mr Bosanac’s] affairs and as result, issued notices of amended assessments for the years ended 30 June 2006 to 30 June 2013 (inclusive) ("the Audit"). The notices were issued on 16 June 2015 and totalled the amount of $9,011,617.23 for income tax, penalties, shortfall interest charge.

5.    Information obtained during the Audit from third parties and bank statements revealed receipts of undisclosed income from employment, rent, sale of assets, foreign source and other unknown sources that [Mr Bosanac] failed to declare in his income tax returns.

6.    The Audit was finalised on or about May 2015. On or around June 2015, the Commissioner provided [Mr Bosanac] with written reasons of his decision to adjust [Mr Bosanac’s] tax returns for the financial years ended 30 June 2006 to 30 June 2013.

7.    As a result of the Audit, the following amended assessments and assessment of shortfall and administrative penalties were issued on 16 June 2015:

(a)    Notice of amended assessment for the year ended 30 June 2006 for the amount of $777,462.50

(b)    Notice of amended assessment for the year ended 30 June 2007 for the amount of $860,761.93;

(c)    Notice of amended assessment for the year ended 30 June 2008 for the amount of $725,749.65;

(d)    Notice of amended assessment for the year ended 30 June 2009 for the amount of $442,888.61;

(e)    Notice of amended assessment for the year ended 30 June 2010 for the amount of $205,102.20;

(f)    Notice of amended assessment for the year ended 30 June 2011 for the amount of $282,796.26;

(g)    Notice of amended assessment for the year ended 30 June 2012 for the amount of $193,094.10.

(h)    Notice of amended assessment for the year ended 30 June 2013 for the amount of $151,644.32.

(i)    Notice of assessment of shortfall penalty the year ended 30 June 2006 for the amount of $693,549.24;

(j)    Notice of assessment of shortfall penalty for the year ended 30 June 2007 for the amount of $621,721.99;

(k)    Notice of assessment of shortfall penalty for the year ended 30 June 2008 for the amount of $400,585.16;

(l)    Notice of assessment of shortfall penalty for the year ended 30 June 2009 for the amount of $197,584.58;

(m)    Notice of assessment of shortfall penalty for the year ended 30 June 2010 for the amount of $70,787.57;

(n)    Notice of assessment of shortfall penalty for the year ended 30 June 2011 for the amount of $68,658.90;

(o)    Notice of assessment of shortfall penalty for the year ended 30 June 2012 for the amount of $30,197.67.

(p)    Notice of assessment of shortfall penalty for the year ended 30 June 2013 for the amount of $13,483.10.

(q)    Notice of administrative penalty for the year ended 30 June 2006 for the amount of $699,716.25.

(r)    Notice of administrative penalty for the year ended 30 June 2007 for the amount of $774,685.70.

(s)    Notice of administrative penalty for the year ended 30 June 2008 for the amount of $653,174.70.

(t)    Notice of administrative penalty for the year ended 30 June 2009 for the amount of $398,599.75.

(u)    Notice of administrative penalty for the year ended 30 June 2010 for the amount of $184,591.95.

(v)    Notice of administrative penalty for the year ended 30 June 2011 for the amount of $254,516.60.

(w)    Notice of administrative penalty for the year ended 30 June 2012 for the amount of $173,784.65.

(x)    Notice of administrative penalty for the year ended 30 June 2013 for the amount of $136,479.85.

8.    On or around 11 August 2015, [Mr Bosanac] objected against the assessments referred to in paragraph 7 above. The objection decision was finalised by decision letter dated 1 June 2016 in which [Mr Bosanac’s] objection was allowed in part. As a consequence of the objection decision, there were additional adjustments to the assessments.

9.    Further notices of amended assessments, shortfall penalties, and administrative penalties being issued on 8 June 2016 totalling $1,113,203.24.

(a)    Notice of amended assessment for the year ended 30 June 2006 for the amount of $5,965.95.

(b)    Notice of amended assessment for the year ended 30 June 2007 for the amount of $202,350.80 credit;

(c)    Notice of amended assessment for the year ended 30 June 2008 for the amount of $562,108.75;

(d)    Notice of amended assessment for the year ended 30 June 2009 for the amount of $222,361.15;

(e)    Notice of amended assessment for the year ended 30 June 2010 for the amount of $43,617.95 credit;

(f)    Notice of amended assessment for the year ended 30 June 2011 for the amount of $120,408.05 credit;

(g)    Notice of amended assessment for the year ended 30 June 2012 for the amount of $6,495.60.

(h)    Notice of amended assessment for the year ended 30 June 2013 for the amount of $2,672.80.

(i)    Notice of assessment of shortfall penalty the year ended 30 June 2006 for the amount of $5,945.32;

(j)    Notice of assessment of shortfall penalty for the year ended 30 June 2007 for the amount of $147,807.19 credit;

(k)    Notice of assessment of shortfall penalty for the year ended 30 June 2008 for the amount of $358,423.17;

(l)    Notice of assessment of shortfall penalty for the year ended 30 June 2009 for the amount of $116,952.71;

(m)    Notice of assessment of shortfall penalty for the year ended 30 June 2010 for the amount of $15,331.19 credit;

(n)    Notice of assessment of shortfall penalty for the year ended 30 June 2011 for the amount of $29,940.00 credit;

(o)    Notice of assessment of shortfall penalty for the year ended 30 June 2012 for the amount of $1,430.31.

(p)    Notice of assessment of shortfall penalty for the year ended 30 June 2013 for the amount of $398.21.

(q)    Notice of administrative penalty for the year ended 30 June 2006 for the amount of $5,369.35.

(r)    Notice of administrative penalty for the year ended 30 June 2007 for the amount of $182,115.70 credit.

(s)    Notice of administrative penalty for the year ended 30 June 2008 for the amount of $505,897.85.

(t)    Notice of administrative penalty for the year ended 30 June 2009 for the amount of $200,125.00.

(u)    Notice of administrative penalty for the year ended 30 June 2010 for the amount of $39,256.15 credit.

(v)    Notice of administrative penalty for the year ended 30 June 2011 for the amount of $108,367.25 credit.

(w)    Notice of administrative penalty for the year ended 30 June 2012 for the amount of $5,845.85.

(x)    Notice of administrative penalty for the year ended 30 June 2013 for the amount of $2,405.50.

Evidence and other Material Relied On

10.    In making the decision to issue the Notices, I relied on the following:

(a)    the taxation liabilities totalling $12,167,585.89. The following is a breakdown of [Mr Bosanac’s] tax liabilities.

(b)    Data collected during the Audit in relation to bank accounts which [Mr Bosanac] has the power to, directly or indirectly, deal with as if these were his own.

(c)    Information, both formally and informally, obtained from [Mr Bosanac] during the Audit.

(d)    AUSTRAC reports obtained during the Audit.

(e)    The reasons for decision dated 16 June 2015.

(f)    Information available on the database maintained by ASIC in respect of [Mr Bosanac’s] directorship and shareholdings;

(g)    Information held on ATO systems in relation to [Mr Bosanac’s] outstanding liabilities and lodgments;

(h)    Information held on ATO systems in relation to [Mr Bosanac’s] associated entities' liabilities and lodgments including Dominion Investments (WA) Pty Ltd, Activistic Holdings Pty Ltd, Dominion Asset Pty Ltd, Greenday Corporate Pty Ltd,

(i)    Documents lodged with ASX in relation to MyFiziq Limited;

(j)    Commissioner of Taxation v Zumtar & others 93 ACT 4351 (Zumtar);

(k)    Practice Statement Law Administration 2011/18 - Enforcement measures used for the collection and recovery of tax-related liabilities ("PS LA 2011/18");

(l)    Practice Statement Law Administration 2011/4 - Collection and recovery of disputed debts ("PS LA 2011/4");

(m)    Practice Statement Law Administration 2011/6 - Risk management in the enforcement obligations and debt collection activities ("PS LA 2011/6");

(n)    The freezing order dated 17 June 2015 and varied on 22 October 2015 in the Federal Court of Australia proceedings No: WAD291/2015;

(o)    The reasons of McKerracher J in granting the freezing order referred to in paragraph 10(n) above, dated 17 June 2015.

(p)    The stay in the proceedings granted on 29 April 2016 by McKerracher J in the Federal Court proceedings No WAD291/2015;

(q)    The reasons of McKerracher J in granting the stay referred to in paragraph 10(p) above, dated 29 April 2016;

(r)    The effect of the garnishee notice on the freezing order referred to in paragraph 10(n) above;

(s)    The effect of the garnishee notice on the stay referred to in paragraph 10(p) above;

(t)    The objection lodged by [Mr Bosanac] referred to in paragraph 8 above, and the reasons put forward by [Mr Bosanac] in support of the objection;

(u)    The objection decision letter dated 1 June 2016;

(v)    [Mr Bosanac’s] appeal against the objection decision filed in the Federal Court on 1August 2016 (Part IVC Proceedings);