Federal Court of Australia

Hii v Commissioner of Taxation [2020] FCA 1452

ORDERS

THE COURT ORDERS THAT:

1.    The application under s 37AR(2) of the Federal Court of Australia Act 1976 (Cth) for leave to institute a proceeding being an application by the applicant for leave to appeal from the orders of the Court made on 4 March 2020 is dismissed.

2.    The application for leave to appeal from the orders of the Court made on 4 March 2020 is dismissed.

3.    The applicant pay the costs of the respondent of and incidental to the application.

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

REASONS FOR JUDGMENT

GREENWOOD J

Context

1    These proceedings are concerned with an application that has two elements.

2    First, the applicant seeks leave to appeal from an order of the Court made on 4 March 2020 by Logan J (the “primary judge”) by which the Court dismissed the applicant’s originating application for the grant of the constitutional writs by way of judicial review under s 39B(1) of the Judiciary Act 1903 (Cth) of an audit decision and an objection decision of the respondent, the Commissioner of Taxation (the “Commissioner”), concerning assessments of income tax and administrative penalties issued to the applicant in the financial years ending 30 June 2001 to 30 June 2009.

3    The Commissioner’s application for dismissal of the applicant’s s 39B proceeding was made pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (the “FCA Act”). The Court’s decision on that application was an interlocutory judgment.

4    Leave to appeal from the order of the primary judge dismissing the applicant’s principal proceeding, is required under s 24(1A) of the FCA Act.

5    On 4 March 2020, the primary judge also made the following order:

Pursuant to s 37AO of the Federal Court of Australia Act 1976, the applicant be prohibited from instituting any further proceeding in this Court in relation to the assessments of him to income tax and penalty for the years ending 30 June 2001 to 30 June 2009, or any anterior audit decision or any subsequent objection decision concerning those assessments, without the leave of the Court.

6    Section 37AO(2)(b) of the FCA Act provides that the Court may make an order prohibiting a person from instituting proceedings, or proceedings of a particular type in the Court. Section 37AO(1) sets out the circumstances in which s 37AO is engaged. Section 37AO(1) is an application of laws provision. Section 37AO(1) is in these terms:

(1)    This section applies if the Court is satisfied:

(a)    a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals; or

(b)    a person, acting in concert with another person who is subject to a vexatious proceedings order or who is covered by paragraph (a), has instituted or conducted a vexatious proceeding in an Australian court or tribunal.

7    The primary judge made the order set out at [5] of these reasons on the footing that s 37AO was engaged and that the applicant’s principal proceeding was a vexatious proceeding under limbs (a) and (c) of the definition of “vexatious proceeding” in s 37AM(1) of the FCA Act. That definition is in these terms:

“vexatious proceeding” includes:

  (a)    a proceeding that is an abuse of the process of a court or tribunal; and

(b)    a proceeding instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and

(c)    a proceeding instituted or pursued in a court or tribunal without reasonable ground; and

(d)    a proceeding conducted in a court or tribunal in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.

[emphasis added]

8    Section 37AR(2) of the FCA Act provides that an applicant may apply to the Court for leave to institute a proceeding that is subject to an order under s 37AO.

9    Accordingly, the second aspect of the applicant’s present application is an application under s 37AR(2) for leave to institute a proceeding that is subject to the order of the primary judge. The Court’s order of 4 March 2020 provides that the applicant is prohibited from instituting any further proceeding in this Court “in relation to” the assessments issued to him to income tax and administrative penalties for the years ending 30 June 2001 to 30 June 2009. An application for leave to appeal from the Court’s order dismissing the principal proceeding seeking judicial review of the Commissioner’s particular audit decision and objection decision is properly characterised as an application “in relation to” the assessments to income tax and administrative penalties issued to the applicant for the relevant financial or tax years in question, in terms of the order of the primary judge.

10    Accordingly, the applicant requires leave under s 37AT(3) to “institute” an application for leave to appeal.

11    Section 37AO(5) of the FCA Act provides that an order made under s 37AO(2)(b) is a “final order”.

12    Section 37AR(2) confers a right upon the applicant to apply for leave to institute a proceeding the subject of the order which, in this case, is an application for leave to appeal from the order dismissing, under s 31A(2) of the FCA Act, the applicant’s principal proceeding. The power to make an order granting the application is conferred under s 37AT(3). It confers a discretion upon the Court to grant such an application and the order may be made subject to any conditions the Court considers appropriate. However, s 37AT(4) provides that the Court may grant leave only if the Court is satisfied that “the proceeding is not a vexatious proceeding”.

13    The present question is whether, on an application under s 37AR(2) for leave to institute an application for leave to appeal, the Court is satisfied that the proposed proceeding is not a vexatious proceeding. The Court can only grant leave if it is satisfied that the proceeding is not a vexatious proceeding. Moreover, s 37AS(2) provides that the Court or a judge must make an order dismissing an application under s 37AR for leave to institute a proceeding if the Court or a judge considers the proceeding is a vexatious proceeding.

14    Accordingly, the first question to be determined in these proceedings is whether leave is to be granted to the applicant under s 37AT(3) in the application made under s 37AR(2) to institute the application for leave to appeal and in deciding that question, the Court must dismiss the application if the Court considers the proceeding is a vexatious proceeding and the Court may only grant leave if it is satisfied the proceeding is not a vexatious proceeding. As to these matters, see Fuller v Toms (2015) 234 FCR 535 at [18] per Besanko, Logan and McKerracher JJ.

Some background facts

15    The background to the application for leave to institute the application for leave to appeal (the “proceeding”) is extensively set out in the affidavit of the applicant’s McKenzie Friend, Registered Tax Agent and Accountant, Ms Clay, sworn on 17 March 2020, and attached exhibits (the “Clay affidavit”).

16    These matters should be noted.

17    The applicant is a Malaysian citizen. On 26 June 2012, following an audit of his income tax affairs, the Commissioner published written findings in the reasons for decision (the “Audit Decision”). Those findings included that, for each of the financial years ending 30 June 2001 to 30 June 2009, the applicant was an Australian resident for tax purposes and his conduct amounted to tax evasion for the years ending 30 June 2001 to 30 June 2004 and 30 June 2007 to 30 June 2009.

18    The Commissioner found that the applicant was a “resident”, being a “person who resides in Australia” (Income Tax Assessment Act 1936 (Cth) s 6(1)) applying a test which determines the meaning of resident according to “ordinary concepts”: Commissioner of Taxation v Miller (1946) 73 CLR 93 at 99. The Commissioner’s findings of fact included:

 (i)    the applicant was granted a permanent residency visa on 20 March 1992;

(ii)    the applicant was granted a five year resident return visa on 27 February 1995, which allows current or former Australian permanent residents to re-enter Australia after travelling overseas and to maintain status as a permanent resident on return to Australia;

(iii)    the applicant was issued a Queensland Drivers Licence on 6 February 1996, and his most recent Queensland Drivers Licence had effective dates of 23 December 2005 to 30 January 2011, with a Queensland address listed by the applicant;

(iv)    the applicant applied on 6 September 2005 to alter his credit card limit with the National Australia Bank, listing the same Queensland address for his contact details;

(v)    the applicant and his wife purchased the property at that Queensland address on 2 April 2001 for $6.5 million and more than six gigabytes of documents pertaining to the applicant's business interests were found at that Queensland address and another property owned by companies controlled by the applicant;

(vi)    the applicant's immediate family, his wife and six children, resided in Australia as permanent residents of Australia, the applicant's extended family lived in Brisbane, and his brothers lived in Victoria;

(vii)    all of the applicant’s children undertook their schooling at Queensland schools, and several children attended the University of Queensland and Queensland University of Technology;

(viii)    the applicant held in his own name 15 separate Australian bank accounts between 2001 and 2009;

(ix)    the applicant stayed at seven different hotels between 2002 and 2007 on his visits to Malaysia, but there was no evidence of any hotel stays when he was in Brisbane;

(x)    as at 21 January 2009, the applicant had a number of vehicles registered to him or his wife in Australia for which insurance was obtained listing either him or his wife, or both, as the main driver, including a Lamborghini Murcielago, a Rolls Royce Phantom, a Ferrari Coupe, and a Bentley Continental;

(xi)    between 1 July 2000 and 30 June 2009, the applicant departed Australia 85 times, of which 84 departure cards were located on each of which the applicant indicated that he was an "Australian resident departing temporarily";

(xii)    the applicant spent between 65 and 189 days in Australia in each year from 2001 to 2009 compared with 6 to 125 in Malaysia for the years known;

(xiii)    the applicant was a director of seven Australian companies with registered offices in Queensland (in six of which the applicant held between 35% and 90% of the shares) during the relevant income years; and

(xiv)    the applicant wrote a letter dated 12 March 2009 to the Australian Department of Immigration which he signed on behalf of one of the companies in which he was a director, which included his statement that "My family currently resides permanently in Brisbane since our first landing in 1993 ... Due to the nature of my business I am forced to regularly travel overseas, because of other business interests".

19    On the basis of the audit decision, the Commissioner assessed the applicant’s taxable income in an amount of approximately $99 million, as an Australian resident for the income years mentioned at [9] of these reasons.

20    Original income tax assessments for the income years ending 30 June 2005 and 2006 were issued to the applicant by the Commissioner. No income tax returns had been filed by the applicant for those financial years. The Commissioner issued amended income tax assessments to the applicant for the years ending 30 June 2001 to 2004 and 2007 to 2009. The total shortfall amounted to more than $46 million. The Commissioner also issued penalty assessments to the applicant totalling more than $14 million.

21    On 20 December 2013, the Commissioner issued a Notice of Objection Decision (the “Objection Decision”) which affirmed the Commissioner’s decision in relation to the “residence” of the applicant for income tax purposes but allowed, in part, an objection by the applicant to the assessments issued to him, reducing by approximately 42% the amount of income tax payable by the applicant. The penalty assessments were also reduced. As to the question of whether the applicant was an Australian resident in the relevant tax years, the Objection Decision added two grounds in support of the Commissioner’s finding that the applicant was, in the relevant years, a Australian resident, namely that:

  (i)    the applicant was “domiciled” in Australia; and

(ii)    in relation to the 2006 tax year, the applicant spent more than 183 days in Australia.

22    The applicant then commenced a number of proceedings.

23    On 14 February 2014, the applicant commenced proceedings in the Federal Court of Australia appealing the Objection Decision, under s 14ZZ of the Taxation Administration Act 1953 (Cth) (the “Administration Act”): QUD57/2014 (the “Part IVC proceeding”), and in the Tribunal challenging the administrative penalties in the years ending 30 June 2001 to 2009 (the “AAT appeal”).

The first s 39B proceeding

24    On 26 November 2014, the applicant commenced further proceedings in the Federal Court of Australia under s 39B of the Judiciary Act 1903 (Cth) seeking declarations and writs of certiorari, prohibition and mandamus in respect of the Commissioner’s notices of amended assessment: QUD622/2014 (the “first s 39B proceeding”).

25    On 23 April 2015, following a four day combined hearing before Collier J, her Honour dismissed the applicant’s interlocutory applications for summary judgment in both proceedings, and dismissed the first s 39B proceeding summarily: Hii v Commissioner of Taxation (2015) 230 FCR 385; [2015] FCA 375.

26    On 8 February 2016, Collier J then determined a contested interlocutory application by which the Commissioner sought an order that the applicant provide security for costs in the Part IVC proceeding: Hii v Federal Commissioner of Taxation [No 3] (2016) 238 FCR 304. Both parties were legally represented. It was not in dispute that the applicant had expended approximately $2 million in legal costs (at 311, [27]). The applicant was ordered to provide $400,000 as security for costs (at 312, [32]). The applicant failed to provide security as ordered and accordingly, the proceeding was deemed to be dismissed on 22 February 2016. On that date, when the applicant’s representative informed the Court in correspondence that the applicant would not provide security for costs, no reasons were given for taking that decision.

27    On 1 July 2016, “in consequence of the deemed dismissal of the [P]art IVC appeal”, the applicant filed a Notice of Withdrawal in the AAT appeal: Clay affidavit at [8].

The proceeding in the High Court

28    On 8 February 2019, the applicant filed, in the High Court of Australia, an application for declarations and the issue of the constitutional writs of certiorari and mandamus in relation to the audit decision and the objection decision (the “High Court proceedings”).

29    On 15 May 2019, Edelman J published ex tempore reasons for judgment dismissing that application: Hii v The Commissioner of Taxation of the Commonwealth of Australia [2019] HCATrans 097.

30    The “fundamental reason” for Edelman J’s dismissal of the applicant’s application was that the grounds of challenge to both the audit and objection decision were, or could have been, raised in the Federal Court in both the Part IVC proceeding and the first s 39B proceeding. Edelman J concluded that in circumstances where the applicant gave no reason as to why the issues raised in the High Court could not have been raised in those proceedings; the applicant had made no application for an extension of time to comply with the order for security for costs; and the applicant did not appeal from the decision that he provide security for costs, it was an abuse of process of the High Court for the applicant, years after the event, to seek to effectively “leapfrog” the review and appeal procedures applicable to proceedings under Part IVC of the Administration Act or s 39B of the Judiciary Act 1903 (Cth), in the relevant forums, by seeking to invoke the High Court’s original jurisdiction: p 7, lns 230-251; Dimitrov v Supreme Court of Victoria (2017) 92 ALJR 12 at [19].

The proceeding the subject of this application

31    On 31 July 2019, the applicant filed in the Federal Court a further originating application for relief under s 39B of the Judiciary Act 1903 (Cth) (the “second s 39B proceeding”): QUD488/2019. As Ms Clay observes at [16] of her affidavit: “… [t]he grounds of the application are essentially the same as the grounds of the High Court application”.

32    On 1 November 2019, the Commissioner filed an interlocutory application seeking summary judgment in the second s 39B proceeding. The Commissioner filed 20 pages of written submissions together with 441 pages of supporting affidavit material. On 30 January 2020, the applicant filed 20 pages of submissions in response together with 63 pages of supporting affidavit material. On 17 February 2020, the Commissioner filed nine pages of short submissions in response and on 28 February 2020, the applicant filed a further 80 pages containing a “summary of oral submission for summary judgement hearing”. The applicant emphasises the volume of material he filed in resisting the Commissioner’s application for summary judgment at first instance, in support of a contention that the primary judge failed to assign reasons for rejecting certain arguments contained in those submissions. That matter is addressed later in these reasons.

33    On 4 March 2020, the matter proceeded to hearing before the primary judge who gave the applicant leave to rely upon the written “summary of oral submission” mentioned earlier, as a substitute for making oral submissions given his issues with English expression.

34    The primary judge granted the Commissioner’s application for summary judgment.

35    In doing so, the primary judge published four pages of ex tempore reasons for the decision: Hii v Commissioner of Taxation (No 2) [2020] FCA 345.

36    The primary judge found that the proceeding was “another form of collateral challenge by judicial review”, by which the applicant sought not to challenge the assessments directly, but rather, indirectly, by a challenge to the preceding audit and objection decisions and that such a challenge bore “an uncanny resemblance” to the application heard and determined by Edelman J in the High Court: at [11]. The primary judge also found that the proceeding had no reasonable prospect of success because the audit decision under challenge had been wholly overtaken by the assessments. The primary judge further found that, whatever flaws there may have been “administratively” (if any) in the assessments, subject to considerations of the kind mentioned in Federal Commissioner of Taxation v Hoffnung & Co Ltd (1928) 42 CLR 39 and Federal Commissioner of Taxation v Futuris Corporation Ltd (2008) 237 CLR 146 (“Futuris”), such flaws were rendered irrelevant by s 175 of the Income Tax Assessment Act 1936 (Cth), which provides that the validity of any assessment shall not be affected by reason that any of the provisions of that Act have not been complied with.

37    The primary judge then addressed the applicant’s arguments, focusing on a “… particular complaint in lengthy submissions about a denial of natural justice”: at [13]. The primary judge found that the relevant aspect of natural justice said to have been denied, was the opportunity to be heard, which had been extended both in this Court and in the Tribunal. The primary judge then found that it is a misconception of the requirements of natural justice that the person affected avail himself or herself of the opportunity extended, and that “what occurred here” was that the applicant elected neither to challenge the security for costs order nor comply with it, and the resultant dismissal of the tax appeal and subsequently the Tribunal appeal were a consequence of those choices, not a result of a denial of natural justice.

38    Similarly to the observations of Edelman J, the primary judge found that there was nothing contained in the present originating application that was not or could not have been advanced either in the s 39B proceeding in the Federal Court or the s 75 proceeding in the High Court, and thus, all issues between the applicant and Commissioner had already been determined, in accordance with the Anshun estoppel: at [15], citing Port of Melbourne Authority v Anshun Pty Ltd (1980) 147 CLR 35.

39    The primary judge found that it would be “completely subversive of the finality” which attended the dismissal of the taxation appeal and earlier judicial review proceedings to embark in any way upon the present collateral challenge, on the merits, reflected in the applicant’s claim for non-residency: at [16]. However, notwithstanding that finding (that it was not necessary to determine whether the law of residency had been properly applied in the applicant’s case), the primary judge made some comments on “those merits”, observing that, “in relation to the circumstances, if they be those as described by Edelman J”, and in light of the decision in Harding v Commissioner of Taxation (2019) 365 ALR 286, it was “by no means patent that there ever was a clear injustice”: at [16].

40    The primary judge also found that there was no evidence to show any prospect of any fraud, bad faith or conscious maladministration by the Commissioner in relation to “assessing”: at [17].

41    Thus, the “inevitable consequence” of those views of the primary judge, was that the proceedings were characterised as an abuse of process or vexatious. Taking into account what was said in Spencer v Commonwealth (2010) 241 CLR 118, the primary judge found that the proceedings had no prospect of success: at [18]. The primary judge also found that proceedings without reasonable cause had been instituted by the applicant in Australian courts “frequently”, within the sense that term was used in Fuller v Toms (2015) 234 FCR 535. The primary judge determined that not only should the application for summary dismissal be upheld, but a vexatious proceedings order was warranted under s 37AO of the FCA Act, confined in its application to challenges to the assessments concerned or anterior audit or subsequent objection decisions: at [19].

This application

42    On 17 March 2020, the applicant filed an application for leave to appeal from the primary judge’s orders and for “a grant of leave to seek leave to appeal and/or leave to file a notice of appeal as required by the order of the primary judge pursuant to s 37AO of the [FCA Act]”, which I take to be an application for leave to institute a proceeding the subject of a vexatious proceedings order: s 37AR(2).

43    The application is in the following terms:

1.    The [applicant] applies for a grant of leave to seek leave to appeal and seeks leave to appeal the judgement and orders of Justice Logan of 4 March 2020 in the Interlocutory Application pursuant to s31A of the Federal Court of Australia Act 1976 (FCAA) or alternatively, rule 26.01(1)(a) of the Federal Court Rules 2011 (the Rules) in QUD 488/2019 summarily dismissing the Originating application for relief under section 39B of the Judiciary Act 1903 of the applicant and making an order pursuant to s37AO of the Federal Court of Australia Act 1976.

2.    The judgement was attended with sufficient doubt to warrant its being reconsidered by the Full Court on the basis of the grounds of the draft Notice of Appeal, which in summary are that:

a.    the learned judge at first instance erred by failing to have regard to the arguments advanced by the applicant in his oral submission filed on 28 February 2020 (the oral submission), which provided further details of the arguments in the response submission filed on 30 January 2020, on each of the matters as ruled on by his Honour,

i.     the contents of the oral submission were summarised in a detailed table of contents for ease of reference, none of which make specific complaint about a denial of natural justice as suggested by the learned judge at first instance

ii.     a review of the table of contents illustrates the detailed and comprehensive nature of the arguments of the applicant related to each of the matters as ruled on in the judgement and the case law relied on in support of the arguments

b.    the learned judge at first instance erred by failing to refer to and assign reasons for the rejection of the arguments of the applicant as detailed in the oral submission in resolution of any of the substantial arguments or significant issues as ruled on in his judgement, including;

i.    in finding that the Income Tax Assessment Act 1936 (ITAA36) and 1997 (ITAA97) and the Taxation Administration Act 1953 (TAA) established a scheme for challenging assessments, failed to refer to or give reasons for rejecting the detailed arguments in the oral submissions:

1.    as to why in the particular circumstances of his case the s 39B application was permissible

2.    with respect to the manifest jurisdictional errors as alleged and that if established, the assessments would be a nullity

3.    that an application under s 14ZZ of the TAA ([P]art IVC appeal) was not permissible in matters alleged to involve manifest jurisdictional errors on the basis of the principle that a decision affected by jurisdictional error does not produce an assessment and cannot be pursued in [P]art IVC; Gashi v Commissioner of Taxation [2013] FCAFC 30 at [43]; Mount Pritchard & District Community Club Ltd v Federal Commissioner of Taxation [2011] FCAFC 129 at [2]; Commissioner of Taxation v Administrative Appeals Tribunal [2011] FCAFC 37 at [22]

ii.     in finding that flaws in the making of an assessment were rendered irrelevant by s 175 of the ITAA36, failed to refer to or give reasons for rejecting the detailed arguments on:

1.     why s 175 and s 177 did not apply in the particular circumstances of the case

2.     the limitation of s 175 to errors within the scope and purpose of the Act and that the alleged errors were ones in excess of authority under the Act; Commissioner of Taxation v Futuris Corporation Limited [2008] HCA 32 at [23]; Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28 at [93]

iii.    in finding the audit decision was wholly overtaken by the assessments, and the objection decision by the taxation appeal and administrative review, failed to refer to or give reasons for rejecting the detailed arguments that:

1.    each of the grounds of the application alleged jurisdictional errors which in the circumstances of the case were material

2.    the alleged jurisdictional errors were matters going to substantive liability, and the principles of how s 177 applies to such matters

iv.    in finding that the statement of claim in the High Court matter has [already] been disposed of and that this was reason to consider the application as an abuse of process having no reasonable prospect of success, failed to refer to or give reasons for rejecting the detailed arguments that Justice Edelman:

1.     made no determination on the merits of the application in the proceeding and therefore it was not a final judgement, it being dismissed on the basis of an abuse of process for bringing an application to the High Court before first pursuing all available review and appeal rights

2.     could have ruled the application to have had no reasonable prospect of success or to be a vexatious proceeding under High Court rule 28.01.2 but did not

v.     in finding Anshun estoppel, failed to refer to or give reasons for rejecting the detailed arguments on why Anshun estoppel did not apply in the particular circumstances of the case

vi.     in finding that it would be subversive of the finality of the [P]art IVC appeal and judicial review in the earlier s 39B and the High Court proceedings to consider the question of residence, failed to refer to or give reasons for rejecting the arguments that:

1.     the judgements in both the [P]art IVC appeal and the High Court proceedings were only interlocutory as there was no final determination of the merits in either proceeding

2.     the earlier s 39B application did not include any ground on residence and therefore there was no determination on the merits of residence in any of the earlier proceedings

vii.     in referring to the case of Harding v Commissioner of Taxation (2019) 365 ALR 286, failed to refer to or give reasons for rejecting the arguments that:

1.     the facts of the present application must be distinguished from the other cases on residence, including Harding v Commissioner of Taxation (2019) 365 ALR 286, as they involve persons who were citizens of, domiciled in or spent more than ½ of each year in Australia and there was either a past or present claim of intention

2.     in reliance on the principles as stated in the United Kingdom (UK) cases of Davies & Anor, R v Revenue and Customs [2011] UKSC 47 (Davies) and Shepherd v Revenue and Customs Commissioners [2005] STC (SCD) 644, the question of residence is not solely a question of fact, but that a person [must] come within the relevant legal provisions defining residence before the facts of the case become a relevant consideration.

3.    the law applies in a similar way in Australia and that a person must come within the legal meaning and extended jurisdiction as state[d] in the s 6(1) definition of resident and as applicable under covering clause 5 of the Constitution of the Commonwealth of Australia 1901 (Constitution) before the question of residence becomes one of fact; Macleod v Attorney-General for New South Wales (1891) AC 455 and Morgan v White [1912] HCA 50

4.    as the applicant is not a citizen of Australia, he does not come within the prima facie jurisdiction under covering clause 5 of the Constitution for a law to apply to him on a worldwide basis, nor did he come within the extended jurisdiction as stated in the s 6(1) definition of resident for the law to so apply to him.

viii.    in finding that there was “an absence of any evidence which would show any prospect, reasonable or otherwise, of any fraud, bad faith or conscious maladministration”, failed to refer to or give reasons for rejecting the arguments that:

1.    the finding of evasion based on the omission of foreign sourced income in the non-resident return of the applicant was contrary to the jurisdictional limits and authority under s 6.5(3) and s 6.10(5) of the Act as non-residents are only taxable on Australian sourced income, and therefore manifest jurisdictional error

2.    the errors of law and the other matters as referred to in each of the grounds of the application are cumulatively evidence of bad faith or conscious maladministration, and failed to refer to or give reasons for rejecting the large number of matters as detailed in the oral submissions for the claim

ix.    in finding that the application had “no reasonable prospect of success”, failed to refer to or give reasons for rejecting the arguments in the oral submissions of the merits of the grounds and why they had merit and it could not be said that they had no reasonable prospect of success

x.    in finding that the applicant had frequently and without reasonable cause instituted proceedings in the Federal and High Court and making an order under s 37AO of the Federal Court of Australia Act 1976, failed to consider or give reasons for rejecting the arguments of the applicant in so ruling

c.    the judgement was vitiated by actual or inferred bias as a consequence of:

i.    failing to have regard to any of the detailed legal arguments of the applicant in his oral submission in response to each of the grounds of the application for summary dismissal and the claims without basis in the submissions of the respondent; SBBA v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 90 at [15]; Minister for Immigration v Jia Legeng [2001] HCA 17 at [35]

ii.    relying primarily on the submissions of the respondent with the result that the decision was attended by many of the same error as evident in those submissions, and as referred to and argued against in the response and the oral submission of the applicant

d.    the errors of law in the decision as stated in the Notice of Appeal, including:

i.    in finding Anshun estoppel on the basis that the grounds of the application were or could have been advanced in the earlier s 39B application or the High Court proceedings, and as a consequence all the issues had already been determined

1.    failed to apply the principle that such a finding of “were or could have been advanced” in earlier proceedings is not sufficient in itself to found a claim of Anshun estoppel: UBS AG v Tyne [2018] HCA 45 at paragraph 68; Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 at paragraph 34;

2.    failed to correctly apply the principles for the finding of Anshun estoppel; Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45

3.    failed to correctly apply the principles for determining if a judgement is final or interlocutory in finding Anshun estoppel on the basis of the High Court proceedings; In the matter of an appeal by Gaye Alexandra Mary Luck [2003] HCA 70 at [9]

ii.    in finding that the question of residence had already been determined in the [P]art IVC appeal and the earlier judicial review proceedings and that it would be subversive of the principle of finality to consider it, failed to acknowledge and/or correctly apply the principles as:

1.    there was no final judgement in the [P]art IVC appeal nor any determination of the merits, it being deemed dismissed due to the failure of the applicant to pay the required security for costs; Hii v Commissioner of Taxation (No 3) [2016] FCA 58

2.    there was no final judgement nor determination of the merits of the grounds in High Court proceedings, it being dismissed as an abuse of process without any finding of estoppel; In the matter of an appeal by Gaye Alexandra Mary Luck [2003] HCA 70 at [9]

3.    there was no ground nor determination on residence in the earlier s 39B proceeding and the facts and legal principles relevant to those proceedings [were] quite different to those in the present proceedings; Hii v Commissioner of Taxation [2015] FCA 375 at [117]-[118]

and therefore there had been no prior determination on residence.

iii.    in finding that the application could not be pursued in s 39B proceedings and that flaws in the making of  the assessment were rendered irrelevant by s 175 of the ITAA, failed to apply the correct principles, including:

1.    that if the respondent acted in excess of authority and the decision manifest jurisdictional errors as alleged, it would not be a decision under the Act and the purported assessments would be a nullity; Deputy Commissioner of Taxation v Richard Walter Pty Ltd [1995] HCA 23; Commissioner of Taxation v Futuris Corporation Limited [2008] HCA 32; Gashi v Commissioner of Taxation [2013] FCAFC 30 at [43]

2.    whether it was a purpose of the legislation, including s 175 and s 177, that an act done in breach of the provisions as alleged should be invalid having regard to “the language of the relevant provision and the scope and object of the whole statute”; Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28 at [93]; Plaintiff   S157 2002 v Commonwealth of Australia 2003 HCA 2 at [20]

3.    in determining whether the decision of the respondent was valid or protected by s 175 and s 177, whether it “involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the Act”; Plaintiff S157 2002 v Commonwealth of Australia 2003 HCA 2 at [76]

iv.    in finding that the applicant had frequently and without reasonable cause instituted proceedings in the Federal and High Court and making an order under s 37AO of the Federal Court of Australia Act 1976, failed to apply the correct principles under s 37AO and s 37AM of the FCCA; Bird v Registrar, Federal Court of Australia [2016] FCAFC 188 at [30]

e.    the learned judge at first instance erred by failing to take into account material considerations, including:

i.    in finding that any errors in making of the assessments were protected by s 175, failed to consider:

1.    whether the errors in the finding of residence or evasion were in the due making of the assessments or matters going to the substantive liability; Binetter v Commissioner of Taxation [2016] FCAFC 163; 249 FCR 534 at [91]

2.    if they were matters going to substantive liability, whether the legal principles from the case law with respect to the application of s 177 to errors in such matters applied in a similar manner to manifest jurisdictional error of law; George v Federal Commissioner of Taxation [1952] HCA 21 at 206-207

3.    whether s 175 and s 177 should apply to protect the alleged manifest jurisdictional errors in the particular circumstances of the case and/or whether parliament intended the provisions to protect conduct in excess of jurisdiction and authority under the Act

and failed to give reasons for rejecting the detailed arguments in the oral submissions on s 175 and s 177 in the particular circumstances of the case.

ii.    in ruling that there was no evidence of any prospect of success on the grounds on evasion or bad faith or conscious maladministration, failed to consider or give any reasons for rejecting the arguments of the applicant that:

4.    the respondent had no authority under the [A]ct to find evasion on the basis of the omission foreign sourced income on the non-resident return of the application under s 6.5(3) or s 6.10(5) of the Income Tax Assessment Act 1997

5.    failed to consider the claim of the applicant that the large number of matters as listed in the oral submissions were cumulatively evidence of bad faith, conscious maladministration or bias and in so finding, gave no reason for rejecting the detailed and comprehensive evidence of the applicant

f.    in finding that the applicant had frequently and without reasonable cause instituted proceedings in the Federal and High Court and making an order under s 37AO of the Federal Court of Australia Act 1976, failed to consider or give reasons for rejecting the arguments of the applicant for so ruling

3.    In the circumstances of the case, substantial injustice will result if leave were refused, supposing the decision to be wrong, as

a.    the application under s 39B was summarily dismissed

b.    as a consequence the applicant cannot pursue his claim that:

i.    the respondent acted in excess of jurisdiction and its authority under the Income Tax Assessment Act 1936 (ITAA36) and 1997 (ITAA97) (the Act)

1.    in ruling him to be a resident in contravention of the prima facie jurisdictional limits under covering clause 5 of the Constitution of the Commonwealth of Australia 1901 and the extension of that jurisdiction as clearly specified in the definition of resident at s 6(1) of the ITAA36

2.    in finding evasion on the basis of the omission of foreign sourced income on his non-resident return, contrary to the limits under s 6.5(3) and s 6.10(5) of the ITAA97 under which a non-resident is only subject to tax on Australian source income

ii.    the errors of [law] and other matters as referred to in each of the eight ground[s] of the application are cumulatively evidence of bad faith, conscious maladministration and/or bias

c.    that if the decision of the respondent is wrong, being vitiated by manifest jurisdictional error and beyond the jurisdiction and authority of the respondent under the Act,

i.    he has been assessed to tax, penalties and interest in excess of $89 million, being primarily overseas sourced amounts, and none of this very substantial amount assessed to him is properly imposed by the Act; RE Paterson (2001) HCA 51 at [251]

ii.    as a result of the finding of evasion, with its implication of dishonesty, his business and personal reputation has been impacted with the consequence of significant damage to his business affairs and in his personal life

4.    Although the decision was interlocutory in its legal effect, in the circumstances it had the practical operation of finally determining a substantive right of the applicant by summarily dismissing the proceedings; Samsung Electronics Co. Limited v Apple Inc. [2011] FCAFC 156 at [30]; The Ship “Sam Hawk” v Reiter Petroleum Inc [2016] FCAFC 26 at [222]. Therefore, the applicant seeks leave to appeal the decision made by Justice Logan in QUD488/2019 on 4 March 2020 summarily dismissing the Originating application for relief under section 39B of the Judiciary Act 1903 of the applicant.

44    On 23 June 2020, my Associate was directed to send an email to the parties in the following terms:

The Hon Justice Greenwood is presently considering the application for leave to appeal from the orders of Justice Logan made on 4 March 2020.

Those orders include an order made under s 37AO of the Federal Court of Australia Act 1976 (Cth) which seem to have been made in reliance on s 37AO(2)(b) and (c). Such an order is characterised as a final order by s 37AO(5).

The terms of the order prohibit the applicant from instituting any further proceeding in this Court in relation to the assessment of the applicant to tax and penalty for the relevant years or any anterior audit decision or any subsequent objection decision concerning those assessments, without the leave of the Court.

The application for leave also seeks leave, to seek leave, to appeal having regard to the order under s 37AO on the footing that an application for leave to appeal is itself a “further proceeding” within the scope of the order made by Logan J, and thus s 37AR is said to be engaged and the application for leave to institute the proceeding seeking leave to appeal falls within s 37AR(2). If that be so, s 37AT(1) provides that before granting an application under s 37AR, the Court must order the applicant to serve the Commissioner with a copy of the application, an affidavit and a notice of entitlement to be heard.

Before considering the application framed by the present application for leave filed on 17 March 2020 (including as it does the application for leave to file the application for leave to appeal), do the parties wish to put before his Honour any short written submissions on the issue of the application for leave to file an application for leave to appeal?

45    Submissions were filed by both parties on the issue of the application for leave to institute an application for leave to appeal.

Legal framework

46    As to the legal framework, the statutory provisions in relation to vexatious proceedings orders are contained in Part VAAA of the FCA Act. Sections 37AO, 37AR, 37AS and 37AT provide as follows:

37AO    Making vexatious proceedings orders

(1)    This section applies if the Court is satisfied:

(a)    a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals; or

(b)    a person, acting in concert with another person who is subject to a vexatious proceedings order or who is covered by paragraph (a), has instituted or conducted a vexatious proceeding in an Australian court or tribunal.

(2)    The Court may make any or all of the following orders:

(a)    an order staying or dismissing all or part of any proceedings in the Court already instituted by the person;

(b)    an order prohibiting the person from instituting proceedings, or proceedings of a particular type, in the Court;

(c)    any other order the Court considers appropriate in relation to the person.

Note:    Examples of an order under paragraph (c) are an order directing that the person may only file documents by mail, an order to give security for costs and an order for costs.

(3)    The Court may make a vexatious proceedings order on its own initiative or on the application of any of the following:

(a)    the Attorney-General of the Commonwealth or of a State or Territory;

     (b)    the Chief Executive Officer;

(c)    a person against whom another person has instituted or conducted a vexatious proceeding;

     (d)    a person who has a sufficient interest in the matter.

(4)    The Court must not make a vexatious proceedings order in relation to a person without hearing the person or giving the person an opportunity of being heard.

(5)    An order made under paragraph (2)(a) or (b) is a final order.

(6)    For the purposes of subsection (1), the Court may have regard to:

(a)    proceedings instituted (or attempted to be instituted) or conducted in any Australian court or tribunal; and

     (b)    orders made by any Australian court or tribunal; and

 (c)    the person’s overall conduct in proceedings conducted in any Australian court or tribunal (including the person’s compliance with orders made by that court or tribunal);

including proceedings instituted (or attempted to be instituted) or conducted, and orders made, before the commencement of this section.

37AR    Application for leave to institute proceedings

(1)    This section applies to a person (the applicant) who is:

(a)    subject to a vexatious proceedings order prohibiting the person from instituting proceedings, or proceedings of a particular type, in the Court; or

(b)    acting in concert with another person who is subject to an order mentioned in paragraph (a).

(2)    The applicant may apply to the Court for leave to institute a proceeding that is subject to the order.

  (3)    The applicant must file an affidavit with the application that:

(a)    lists all the occasions on which the applicant has applied for leave under this section; and

(b)    lists all other proceedings the applicant has instituted in any Australian court or tribunal, including proceedings instituted before the commencement of this section; and

(c)    discloses all relevant facts about the application, whether supporting or adverse to the application, that are known to the applicant.

(4)    The applicant must not serve a copy of the application or affidavit on a person unless an order is made under paragraph 37AT(1)(a). If the order is made, the applicant must serve the copy in accordance with the order.

37AS    Dismissing application for leave

(1)    The Court or a Judge may make an order dismissing an application under section 37AR for leave to institute a proceeding if the Court or Judge considers the affidavit does not substantially comply with subsection 37AR(3).

(2)    The Court or a Judge must make an order dismissing an application under section 37AR for leave to institute a proceeding if the Court or Judge considers the proceeding is a vexatious proceeding.

(3)    The Court or a Judge may dismiss the application without an oral hearing (either with or without the consent of the applicant).

37AT    Granting application for leave

(1)    Before the Court makes an order granting an application under section 37AR for leave to institute a proceeding, it must:

(a)    order that the applicant serve:

(i)    the person against whom the applicant proposes to institute the proceeding; and

    (ii)    any other person specified in the order;

with a copy of the application and affidavit and a notice that the person is entitled to be heard on the application; and

(b)    give the applicant and each person described in subparagraph (a)(i) or (ii), on appearance, an opportunity to be heard at the hearing of the application.

(2)    At the hearing of the application, the Court may receive as evidence any record of evidence given, or affidavit filed, in any proceeding in any Australian court or tribunal in which the applicant is, or at any time was, involved either as a party or as a person acting in concert with a party.

(3)    The Court may make an order granting the application. The order may be made subject to the conditions the Court considers appropriate.

(4)    The Court may grant leave only if it is satisfied the proceeding is not a vexatious proceeding.

47    In Fuller v Toms (2015) 234 FCR 535 at [31] (“Fuller”), the Full Court observed that the exercise of the power conferred under s 37AO involves a balancing exercise between, on the one hand, the “right of one individual of access to justice with other rights namely, a correlative right” of other parties to finality of the issues in controversy, and the separate rights of other individuals to also access the Court. The power to make such an order takes account of the need to protect the community including litigants who wish to have their disputes resolved in an orderly and expeditious manner, from disruption of the Court system flowing from the repeated “institution” of groundless proceedings: Ramsey v Skyring (1999) 164 ALR 378 at [52] per Sackville J.

48    The term “institute” is broadly defined in s 37AM(1) and extends to both courts and tribunals, and therefore encompasses, in the present matter, the proceedings instituted in the Federal Court, High Court and the Tribunal, as described earlier in these reasons.

49    The meaning of the term “frequently” has changed during the history of the statutory regime in question. In Fuller, the Full Court agreed at [33] with Pagone J’s observations in Garrett v Commissioner of Taxation [2015] FCA 117 at [8] that, in the context of s 37AO, the word “frequently” has its ordinary meaning, and is not given a specific statutory meaning for the purposes of s 37AO(1), noting (but distinguishing) the former Order 21, rule 1 of the Federal Court Rules (“the Rules”), which had imposed a higher threshold of a need to establish that vexatious proceedings had been conducted “habitually, persistently and without reasonable grounds”. The use of the term “frequently” therefore imposes a lesser test than that previously imposed: HWY Rent Pty Ltd v HWY Rentals (in liq) (No 2) [2014] FCA 449 at [111] (“HWY Rent”).

50    In HWY Rent, Perry J further observed that the Court may find that a person has conducted vexatious proceedings “frequently” even though the number of proceedings may be quite small, such as where the proceedings are an attempt to re-litigate an issue determined against the person: at [112]. Indeed, there is no statutory numerical threshold for what constitutes the “frequent” institution of vexatious proceedings. Rather, the question posed by s 37AO must be answered in the circumstances of the particular case: HWY at [114]; approved in Fuller at [33]. See also Agapis v Plumbers Licensing Board (No 2) [2014] FCA 1045 at [49].

51    The following aspects of the statutory scheme ought to be noted.

52    Section 37AR(2) provides that a person, described as the applicant, who is subject to a vexatious proceedings order under s 37AO may apply to the Court for leave to institute a proceeding that falls within the terms of the order. The applicant must file an affidavit with the application that lists all the occasions on which the applicant has applied for leave under s 37AR; that lists all other proceedings that applicant has instituted in any Australian court or tribunal; and discloses all relevant facts about the application whether facts supporting or adverse to the application, known to the applicant: s 37AR(3)(a)-(c).

53    Section 37AR(4) prohibits an applicant serving a copy of an application under s 37AR(2) (or the supporting affidavit) on a person unless an order under s 37AT(1)(a) is made. Section 37AT(1) provides that before the Court makes an order granting an application under s 37AR for leave to institute a proceeding, the Court must order that the applicant serve the person against whom the applicant proposes to institute the proceeding (and any other persons specified in the order) with a copy of the application and affidavit and a notice that the person is entitled to be heard on the application. In this case, no such order was made under s 37AT(1)(a). However, the Commissioner has already been served with the originating application and affidavit of Ms Clay (Clay affidavit at [2]; Clay affidavit of service sworn 24 March 2020), and, by taking up the Court’s invitation to provide written submissions on the issue, the Commissioner has been heard on the application on the papers, and makes no complaint regarding this issue.

54    Section 37AS(1) provides that the Court may dismiss the application for leave to institute the proceeding if the Court or Judge considers that the affidavit does not substantially comply with s 37AR(3).

55    As to s 37AR(3)(a), this is the first occasion on which the applicant has applied for leave under s 37AR(2), being an application for leave to institute an application for leave to appeal from the judgment containing the original order.

56    As to s 37AR(3)(b) and (c), the Clay affidavit is comprehensive in disclosing the applicant’s litigation history and the facts leading up to this application. The applicant’s affidavit also exhibits the reasons for judgment from the relevant previous proceedings. Although the applicant could have included more by way of affidavit material in relation to the Commissioner’s decisions under challenge and Court documents from the previous proceedings, I am nonetheless satisfied that the applicant has disclosed his litigation history. I am not satisfied that leave should be refused on the basis of any matter arising under s 37AR(3)(a)-(c) based on the present material. Moreover, the Commissioner has not raised any issue of non-compliance by the applicant with the requirements under s 37AR(3)(a)-(c) in its written submissions.

57    As earlier mentioned, s 37AS(2) provides that the Court or a judge must make an order dismissing an application under s 37AR for leave to institute a proceeding if the Court or a judge considers the proceeding is a vexatious proceeding.

58    Section 37AT(3) provides that the Court may make an order granting an application under s 37AR and the order may be made subject to conditions the Court considers appropriate.

59    However, consistent with s 37AS(2), s 37AT(4) provides that the Court may grant leave only if it is satisfied the proceeding is not a vexatious proceeding.

60    The primary judge relied upon the elements of paras (a) and (c) of the definition of “vexatious proceeding” in s 37AM(1) in making the order under s 37AO (PJ at [18]-[19]). Although the text of the definition is set out at [7] of these reasons, it is convenient to set out here elements (a) and (c) of the definition. The term “vexatious proceeding” is defined to include:

(a)    a proceeding that is an abuse of the process of a court or tribunal; and

(b)    …

(c)    a proceeding instituted or pursued in a court or tribunal without reasonable ground; and

(d)    …

[emphasis added]

61    The Commissioner contends that the application for leave to appeal is a vexatious proceeding on both grounds (a) and (c) of the definition in s 37AM(1). However, the Commissioner focuses primarily on the “abuse of the process of [the Court]” argument.

Meaning of the phrase “abuse of the process of a court”

62    The expression “an abuse of the process of a court”, as used in subsection (a) of the definition, is not given a specific statutory meaning in the FCA Act. The circumstances in which the use of the Court’s processes amount to an abuse of the Court’s processes are not capable of exhaustive definition.

63    Nevertheless, the High Court recently examined the notion of “abuse of process” in the context of an appeal from the Full Court of the Federal Court in UBS AG v Tyne (2018) 265 CLR 77 (“Tyne”). In Tyne, Kiefel CJ, Bell and Keane JJ published a joint judgment. Gageler J published a separate judgment. Those four Justices constituted the majority, finding that the proceeding commenced in the Federal Court was an abuse of process. Nettle and Edelman JJ published a joint judgment dissenting from the majority view. Gordon J also dissented from the majority view, publishing separate reasons.

64    Notwithstanding the Court’s difference of opinion as to whether the particular Federal Court proceeding brought by the trustee in Tyne amounted to an abuse of process, all seven members of the Court framed the inquiry by citing the passage in Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507 at [25] per French CJ, Bell, Gageler and Keane JJ, in which their Honours described a proceeding as an abuse of process where its prosecution is unjustifiably oppressive to a party, or brings the administration of justice into disrepute. The former involves the consideration of private interests, while the latter invokes the public interest in the efficient and timely administration of justice.

65    In Tyne, Kiefel CJ, Keane and Bell JJ observed at [1], citing Hunter v Chief Constable of West Midlands Police [1982] AC 529 at 536 per Lord Diplock; Walton v Gardiner (1993) 177 CLR 378 at 393 per Mason CJ, Deane and Dawson JJ; Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507 at [25] per French CJ, Bell, Gageler and Keane JJ, that:

The varied circumstances in which the use of the court’s processes will amount to an abuse, notwithstanding that the use is consistent with the literal application of its rules, do not lend themselves to exhaustive statement. Either of two conditions enlivens the power: where the use of the court’s procedures occasions unjustifiable oppression to a party, or where the use serves to bring the administration of justice into disrepute.

[emphasis added]

66    In Tyne, the plurality ultimately found that both conditions were engaged.

67    In relation to the question of whether the proceedings in Tyne occasioned unjustifiable oppression to a party, the fact that the respondent to the principal proceedings, UBS, was a large commercial corporation, did not diminish the burden of the proposition that the proceeding would subject it to unjustifiable oppression. The significant delay in resolution of the dispute, its history and the inevitably of increased costs amounted to such oppression.

68    In relation to the question of whether the proceeding served to bring the administration of justice into disrepute, UBS was required to deal with claims which ought to have been brought and thus resolved in the earlier litigation in the Supreme Court of New South Wales.

69    Gageler J observed that the doctrine of abuse of process has repeatedly been recognised to be “insusceptible of a formulation which would confine it to closed categories”: at [72] citing Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256 at [1] and [9]; Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507 at [25]. His Honour observed at [72]:

In the context of the application of the doctrine to the bringing of successive proceedings, consistently with the analysis of Lord Bingham [in Johnson v Gore Wood & Co [2002] 2 AC 1], I think it better in weighing the private and public interests involved to eschew the extremes of private “oppression” and of public “disrepute”. The relevant public interest is ordinarily appropriately identified in more general and less emotive terms as the timely and efficient administration of civil justice.

70    Nettle and Edelman JJ at [83], framed the questions for determination as:

… should the Trustee’s action in commencing the Federal Court proceedings following the previous trustee’s discontinuance of its involvement in the Supreme Court proceedings be seen as “unjustifiably oppressive” to the appellant, UBS AG (“UBS”), or as “bring[ing] the administration of justice into disrepute” [similarly citing Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507 at 518 – 519 [25] per French CJ, Bell, Gageler and Keane JJ]?

71    Their Honours then reached a different conclusion to those of the majority when applying the principles to the facts in Tyne.

72    Gordon J observed in non-exhaustive terms at [126] that:

… The doctrine of abuse of process is not limited to defined and closed categories of conduct [citing “Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507 at 518-519 [25] citing Batistatos (2006) 225 CLR 256 at 262 [1], 265 [9]; see also at 267 [14]. See also Rozenblit (2018) 262 CLR 478 at 497 – 498 [63] fn 90 and the authorities cited therein.”]. It is capable of being applied to “any circumstances in which the use of a court’s procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute” [citing “Tomlinson (2015) 256 CLR 507 at 518 – 519 [25] citing PNJ v the Queen (2009) 83 ALJR 384 at 385 – 386 [3]; 252 ALR 612 at 613. See also Walton v Gardiner (1993) 177 CLR 378 at 392 – 393.”].

[original emphasis]

73    Where, as here, the Court is required to determine whether it can be satisfied that a proceeding is not a vexatious proceeding because the Court is satisfied that the proceeding is not an abuse of process, the two conditions examined by the High Court in Tyne need to be considered.

Meaning of the phrase “without reasonable ground”

74    The meaning of the phrase “without reasonable ground” was considered in Re Garrett [2016] FCA 703 by Charlesworth J (and applied in Re Fuller [2017] FCA 305 at [29] per Siopis J). Her Honour made the following observations at [9] and [10]:

9    The phrase "without reasonable ground", as used in paragraph (c) of the definition, is equivalent in meaning to the phrase "without reasonable cause". In Spotless Services Australia Ltd v The Honourable Senior Deputy President Jeanette Marsh [2004] FCAFC 155 … the Full Court considered the phrase "without reasonable cause" as it then appeared in s 347(1) of the Workplace Relations Act 1996 (Cth). The Full Court said (at [13]) that the question of whether a proceeding has been commenced without reasonable cause is to be answered as a matter of objective fact and requires an assessment of whether the proceeding is "bound to fail" or "so obviously untenable that it cannot possibly succeed", "manifestly groundless" or "bad beyond argument". In Hatchett v Bowater Tutt Industries Pty Ltd (No 2) (1991) 28 FCR 324, von Doussa J said (at FCR 327 [8]; IR 34):

The test imposed by the expression "vexatiously or without reasonable cause" is similar to the one applied by a court on an application for the exercise of summary power to stay or strike out proceedings: see Heidt v Chrysler Australia Ltd (1976) 26 FLR 257 at 272–273 and Geneff v Peterson (1986) 19 IR 40 at 87–88.

10    The test being an objective one, it is not to the point that the applicant subjectively believes there to be a reasonable ground to institute the proceeding.

75    In considering the construction to be attributed to the phrase “without reasonable ground”, each word of the statutory phrase must be kept firmly in mind. In addition, the statutory context within which the phrase is used must also be kept firmly in mind. There is always a danger in attributing meaning to a statutory phrase on an analogical footing based upon the meaning attributed to a similar phrase in a different statutory context. Section 37AM(1), in defining the term “vexatious proceeding”, defines the term in an inclusive way so as to include a proceeding instituted or pursued in a court or tribunal without reasonable ground. Such a proceeding is a vexatious proceeding for the purposes of the power conferred upon the Court under s 37AO in circumstances where s 37AO is engaged by reason of s 37AO(1). The power conferred upon the Court in respect of such proceedings is protective both in terms of the processes of the Court and the interests of the community in the efficient administration of justice. That is why, although a person subject to an order made under s 37AO may apply to the Court for leave to institute a proceeding subject to the order, the Court must dismiss such an application if the Court considers that the proposed proceeding is a vexatious proceeding (s 37AS(2)) and may grant leave only if satisfied that the proceeding is not a vexatious proceeding. In the phrase “without reasonable ground”, the word “reasonable” is an important word. So too is “without” and the word “ground”. If the proposed proceeding is a proceeding based upon a ground which has little prospect of success but nevertheless advances a ground which is at least arguable, it cannot be said that the proceeding is without reasonable ground. The question does not involve balancing whether it is likely, or more likely than not, that an argument might prevail. If the proposed proceeding rests upon a ground which is capable of being arguably supported, it cannot be a proceeding “without reasonable ground”. In order to be a proceeding “without reasonable ground”, the proceeding ought to be one where, objectively viewed, the ground, agitated in the proceeding, is bound to fail or so untenable that it cannot possibly succeed. In that sense, the analogical reference to the meaning attributed to “without reasonable cause” provides a useful but not determinative understanding of the proper approach to construing the meaning of the phrase “without reasonable ground”.

Respondent’s Submissions

76    In support of the contention that the present proceeding is an abuse of process, the Commissioner’s contentions are these.

77    The proceeding before the primary judge represented the third attempt to litigate judicial review proceedings in respect of the decisions and assessments of the Commissioner, following the first s 39B proceeding dismissed by Collier J and the High Court proceeding dismissed by Edelman J. The relief sought in the primary proceeding before the primary judge was “starkly similar” to that sought by invoking the High Court’s original jurisdiction. Edelman J considered that application to be an abuse of process as those grounds were or could have been raised in the first s 39B proceeding. The Commissioner relies on the following observations from pages 10–11 of Edelman J’s reasons for judgment, where his Honour observed:

In very broad terms, each of the grounds upon which the plaintiff relies seek to challenge the Audit Decision and the Objection Decision of the Commissioner are matters that either were, or could have been, raised in the primary proceedings commenced by the plaintiff, or on appeal, whether in the Federal Court proceedings under s 39B of the Judiciary Act or in the proceedings under Pt IVC of the Taxation Administration Act. As to the s 39B proceedings, subject to the requirement of leave, which might involve similar issues about delay to those raised above, there is no bar to an appeal. As to the Pt IVC proceedings, the Commissioner submitted that there is no res judicata that arises from the dismissal of the plaintiff's application following his failure to pay security for costs. In any event, the plaintiff did not suggest that there was any reason why the issues that he now seeks to raise in this Court could not have been raised in those proceedings. Further, the plaintiff made no application for any extension of time to comply with the order for security for costs, nor did he appeal from the decision that he pay security for costs.

In these circumstances it is an abuse of process of the Court for the plaintiff, years after the event, to seek effectively to "leapfrog”, by an application in this Court's original jurisdiction, the review and appeal procedures applicable to proceedings brought under Pt IVC of the Taxation Administration Act or under s 39B of the Judiciary Act.

78    The Commissioner submits that this application for leave under s 37AR(2) so as to initiate the application for leave to appeal from the second s 39B proceeding, would be in furtherance of that abuse of process because it seeks to provide a further opportunity to the applicant to re-litigate the very matters that have been separately found by the primary judge and by Edelman J to constitute an abuse of process.

79    In support of the contention that the present proceeding is without reasonable ground, the Commissioner contends that any application for leave to appeal would need to address the primary judge’s finding at [18] that there was “… an absence of any evidence which would show any prospect, reasonable or otherwise, of any fraud, bad faith or conscious maladministration by the Commissioner …”. Those observations of the primary judge derive from observations of Gummow, Hayne, Heydon and Crennan JJ in Federal Commissioner of Taxation v Futuris (2008) 237 CLR 146 at [24] and [25]. Their Honours said this:

24    Section 175 must be read with ss 175A and 177(1) [of the Income Tax Assessment Act 1936 (Cth) (the “1936 Act”); see also now Schedule 1 to the Taxation Administration Act 1953 (Cth), s 350-10(1) which provides that the product of a notice of assessment under a taxation law is conclusive evidence that the assessment or declaration was properly made]. If that be done, the result is that the validity of an assessment is not affected by failure to comply with any provision of the Act, but a dissatisfied taxpayer may object to the assessment in the manner set out in Pt IVC of the Administration Act; in review or appeal proceedings under Pt IVC the amount and all the particulars of the assessment may be challenged by the taxpayer but with the burden of proof provided in ss 14ZZK and 14ZZO of the Administration Act. Where s 175 applies, errors in the process of assessment do not go to jurisdiction and so do not attract the remedy of a constitutional writ under s 75(v) of the Constitution or under s 39B of the Judiciary Act.

25    But what are the limits beyond which s 175 does not reach? The section operates only where there has been what answers the statutory description of an “assessment”. Reference is made later in these reasons to so-called tentative or provisional assessments which for that reason do not answer the statutory description in s 175 and which may attract a remedy for jurisdictional error. Further, conscious maladministration of the assessment process may be said also not to produce an “assessment” to which s 175 applies. …

[emphasis added]

80    As to the first matter, the applicant did not allege that the assessments were tentative.

81    In relation to the second matter, the Commissioner contends that the absence of any evidence of conscious maladministration was also a feature of the first s 39B proceeding. The applicant there eschewed the existence of “actual bad faith”, and Collier J at [101] of the reasons for judgment in that proceeding, was “… not persuaded that the conduct of the Commissioner in this case can be described as conscious maladministration, which clearly contemplates bad faith”. The Commissioner contends that this application for leave to initiate the application for leave to appeal the primary judge’s decision is of no utility as the proceeding before the primary judge was fundamentally deficient due to a failure to engage either of the two grounds upon which the assessments could be challenged under s 39B of the Judiciary Act or s 75(v) of the Constitution.

Applicant’s submissions

82    The applicant contends that, in making the vexatious proceedings order, the primary judge failed to, firstly, give any or sufficient reasons in support of the conclusion that the earlier judicial review in the Federal Court (before Collier J) was a proceeding instituted without reasonable cause; secondly, give any or sufficient reasons in support of the conclusion that the earlier judicial review in the Federal Court and the application to the High Court amounted to having “frequently” instituted or conducted vexatious proceedings in Australian courts as required under s 37AO; and thirdly, the primary judge failed to give reasons for the rejection of the applicant’s arguments set out in the response submission or as further detailed in the oral submission.

83    All of the applicant’s written submissions in the present application for leave to initiate an application for leave to appeal are predicated on the basis that the primary judge’s reasons were insufficient, both in terms of a failure to give reasons in support of the primary judge’s conclusions and in failing to both refer to the applicant’s arguments and give sufficient reasons for rejecting them.

84    In making that submission, the applicant cited Bromberg J’s remarks at [75] in Alexander v Australian Community Pharmacy Authority [2010] FCA 189; (2010) 233 FCR 575 (“Alexander”) that:

While it is not incumbent upon a judge to deal with every argument or issue that might arise in the course of a case, where an argument is substantial or an issue is significant, it is necessary to refer to and assign reasons for the rejection of the argument or the resolution of the issue: Hunter v Transport Accident Commission; (2005) 43 MVR 130 per Nettle JA at [21]; referred to with approval by Tamberlin, Sundberg and Besanko JJ in Carlisle Homes Pty Ltd v Barrett Property Group Pty Limited [2009] FCAFC 31 at [45].

85    The applicant relies upon the observations of Tamberlin, Sundberg and Besanko JJ at [40]-[42] in Carlisle Homes Pty Ltd v Barrett Property Group Pty Ltd [2009] FCAFC 31 (“Carlisle”) as authority for the proposition that a trial judge’s failure to give reasons is an error of law.

86    As to the question of whether the proceeding is an abuse of process, the applicant contends that there was no finality in the various proceedings on the issue of residence as there was no final judgment in either the Part IVC hearing or the High Court proceeding, both judgments being interlocutory in nature, nor in the earlier s 39B proceeding in the Federal Court as the application only “involved” a very discrete ground of “evasion” and no ground based on residence. The applicant further contends that it can be easily seen from Edelman J’s reasons that there was no determination of the applicant’s judicial review application on the merits in the High Court. Rather, the applicant contends that Edelman J simply dismissed the proceeding as an abuse of process on the basis that the proceeding had been brought in the High Court without first pursuing all avenues of review under Part IVC of the Administration Act and s 39B of the Judiciary Act.

87    The applicant also contends that the primary judge’s decision was not legally reasonable (at [21]); that his Honour’s judgment was vitiated by “actual or inferred bias” (at [22]); under the heading “Jurisdictional error of law”, that the applicant’s case raised “a number of complex matters not previously ruled on in an Australian case” (at [48]) including whether an individual who asserts that he or she has never been a resident of Australia (and seeks to challenge a contention that he or she has become a resident) can be found to be a resident if he or she is not a citizen (at [49]-[54]), and whether the Anshun estoppel applied (at [55]); that the primary judge erred in finding there was an absence of any evidence which would show any prospect of fraud in circumstances where the Commissioner had only found evasion; and that injustice would result if leave to appeal were refused due to, among other things, the extensive reporting of the matter outside of Australia and the consequences for the applicant’s reputation (at [57]-[58]).

88    On the question of whether the proceeding was without reasonable ground, the applicant also contended that the Commissioner’s reliance on the applicant’s omission of foreign sourced income in his non-resident returns as a basis for the finding of evasion was legally unreasonable and ultra vires as it exceeded the limits of ss 6.5 and 6.10 of the Income Tax Assessment Act 1997 (Cth). The applicant further contended in broad, all-encompassing terms, that the primary judge erred in finding that there was no evidence to support a claim of bad faith or conscious maladministration because “the errors of law and other matters as referred to in all the grounds of the application cumulatively amount to evidence of the claim”.

Consideration: abuse of process

89    The overlap between the proceeding before the primary judge and the first two s 39B proceedings in the Federal Court and the High Court is central to determining whether the proceeding the applicant seeks to now initiate is an abuse of process and thus a vexatious proceeding having regard to the definition in s 37AM(1).

90    In the original s 39B application commenced in the Federal Court on 26 November 2014 by amended originating application, the applicant sought relief which included declarations that the Commissioner’s notices of amended assessment were void. Although the amended originating application filed on 18 February 2015 is not exhibited to Ms Clay’s affidavit, Collier J’s reasons for judgment (which are exhibited to that affidavit) set out the 17 grounds of relief sought under s 39B in full: Hii v Federal Commissioner of Taxation (2015) 230 FCR 385 at [19].

91    In the first s 39B proceeding before Collier J, the applicant by his amended originating application, sought: a declaration that notices of amended assessment issued to him for the years ending 30 June 2001 to 30 June 2009, as a result of the Commissioner’s audit decisions, were void and of no effect (Declaration No. 1); a declaration that notices of amended assessment issued as a result of the Commissioner’s determination of objections to assessments for the years ending 30 June 2001 to 30 June 2009, lodged under Part IVC of the Administration Act, were void and of no effect (Declaration No. 2). A declaration in similar terms to Declaration No. 2 was sought concerning a further amended assessment for the year ending 30 June 2004 (Declaration No. 2A). As to those claims, the applicant sought remedial orders in the form of the constitutional writs of certiorari, mandamus and prohibition in reliance on s 39B of the Judiciary Act. Other declarations were sought that the Commissioner had no power to make the amended assessments for the years ending 30 June 2001 to 30 June 2004, under the 1936 Act, until the Commissioner had formed a view that there had been an avoidance of tax due to fraud or evasion and that no such view had been formed (Declaration Nos. 3 and 4). Similar declarations were sought as to the amended assessments for the years ending 30 June 2007 to 30 June 2009 (Declaration Nos. 5 and 6). The applicant sought a further declaration that if the amended assessments are void and of no effect (having regard to the declarations sought), the shortfall penalty assessments for the years ending 30 June 2001 to 30 June 2009 are also void and of no effect.

92    Thus, it can be seen that in the first s 39B proceeding, the applicant was seeking the grant of the constitutional writs in relation to the contended invalidity of the amended assessments due to their relationship with the Commissioner’s anterior audit decisions and the subsequent objection decisions, among other matters.

93    The applicant contends that because these matters were not determined either in the first s 39B proceeding or in the proceeding before Edelman J, the application for leave to appeal the orders and judgment of the primary judge (which is the proceeding the applicant seeks leave to initiate) is not an abuse of the process of the Court. The matters and issues are said to remain extant and unresolved. The matters in issue, of course, could have been addressed in the first s 39B proceeding to the extent that such challenges were competent and susceptible of a remedy under s 39B having regard to the principles established by the High Court in Futuris, or addressed in the Part IVC proceedings had the applicant chosen to comply with orders in those proceedings and prosecuted them to determination (and any appeals from that determination).

94    In the High Court application filed on 8 February 2019, the applicant also sought declarations and the grant of the constitutional writs in relation to the audit decision and the objection decision. Edelman J summarised the applicant’s grounds for seeking those writs in the following terms:

In very broad summary his grounds include: (i) the Commissioner's decision that the plaintiff was a "resident according to ordinary concepts" involved a misconstruction of the legislative scheme concerning residence and therefore a misconstruction of the Commissioner's powers, a failure to take account of a relevant consideration, a denial of natural justice or procedural fairness, and reaching a decision that was legally unreasonable; (ii) the Commissioner's additional two grounds for the Objection Decision involved errors of law on the face of the record and jurisdictional errors of law including misconstruing the law applicable to domicile, relying upon irrelevant material, making an erroneous finding, reaching a mistaken conclusion, failing to take into account relevant considerations, making statements without evidence, denial of procedural fairness, and reaching a decision that was legally unreasonable; (iii) the Commissioner's decision on evasion involved errors of law on the face of the record and jurisdictional errors including ignoring relevant material, relying upon irrelevant material, making an erroneous finding, reaching a mistaken conclusion, and reaching a decision that was legally unreasonable; and (iv) the Audit Decision and the Objection Decision were made in bad faith.

95    In the proceeding before the primary judge, the applicant similarly challenged the audit and objection decisions. The applicant sought declarations that those decisions were invalid; the grant of writs of certiorari quashing both decisions; an order allowing the applicant’s objection in full or alternatively the grant of a writ of mandamus directing the Commissioner to reconsider the decisions in relation to “residence”. Particular matters raised in the first s 39B proceeding before Collier J were also sought to be re-agitated, with the applicant seeking a writ of prohibition or alternatively an injunction to restrain the Commissioner from taking any action based on the notices of amended assessment to the extent that those amended assessments arose out of the impugned audit and objection decisions.

96    Clearly, there is substantial overlap between the first s 39B proceeding, the proceeding commenced in the High Court and the proceeding before the primary judge. As to the challenge to the Commissioner’s findings concerning the residency of the applicant and the applicant’s “evasion” in relation to disclosing assessable income, those challenges engage a challenge to decisions made in the course of and as a result of the audit leading to the issue of the amended assessments to the applicant, and subsequently the objection decisions of the Commissioner concerning objections to those amended assessments leading to further amended assessments. The amended assessments in each case are said to be invalid due to errors of law, jurisdictional errors in the decision-making in the audit decisions and objection decisions and due to bad faith.

97    Having regard to the scope of the issues arising in the first s 39B proceeding, the Part IVC proceeding, the proceeding before the High Court and then the proceeding before the primary judge, the primary judge ultimately correctly found that the applicant was seeking to re-agitate and re-litigate through the vehicle of yet another s 39B proceeding, matters which were the subject of the matters in controversy in the proceedings before Collier J and then Edelman J.

98    The following matters going to the question of abuse of process should be noted.

99    When the proceeding was litigated before Edelman J, his Honour observed that the application for a writ of certiorari so as to quash the audit decision and the objection decision was made more than six years and four and a half years out of time, respectively. Edelman J described the application for the grant of the writ of certiorari in relation to these decisions as lying “at the heart of the relief” sought by the applicant. The application seeking the grant of the writ of certiorari, in respect of the same decisions, before Logan J, was filed five months later and thus, even further out of time. Edelman J also observed that the grant of the writ of certiorari would require “absolutely exceptional circumstances when the delay, as here, is measured in years rather than months”. Having regard to the High Court’s observations in Tyne and Tomlinson concerning the public interest in the timely and efficient administration of justice, allowing the applicant to re-litigate proceedings seeking materially identical relief to that already sought, out of time, in the Federal Court and the High Court, would not be consistent with serving that interest.

100    As observed by Edelman J, all of the grounds on which the applicant sought to challenge the audit and objection decisions either were, or could have been, raised before Collier J, such that Edelman J was satisfied that the proceeding before his Honour was an abuse of process. In circumstances where a very similar collateral challenge to the assessments was made before Logan J, by seeking judicial review of the anterior audit decision and the subsequent objection decisions leading to the amended assessments, the primary proceeding is properly characterised as an abuse of the process of this Court. The application for leave to appeal seeks leave to agitate matters that, in the exercise of the appellate jurisdiction, agitates questions of contended error in the dismissal of the s 39B proceeding by re-agitating the very questions which were found to be the expression of an abuse of the process of this Court. Thus, the applicant is seeking leave to institute a proceeding which is itself an expression of an abuse of the process of this Court or a furtherance of an abuse of the process of this Court by seeking to continue it in the appellate jurisdiction.

101    As to the applicant’s contention that these proceedings are not an abuse of process because there was never a final as opposed to an interlocutory hearing of the applicant’s claim for judicial review, on the merits, before Collier J, Edelman J or Logan J, these matters should be noted.

102    In order to challenge the amended assessments (outside the statutory scheme as construed in Futuris at [24] and [25], by means of a proceeding in reliance upon s 39B of the Judiciary Act or s 75(v) of the Constitution in which the essential contention is one of jurisdictional error), on the ground that there were errors of a particular kind or character in the Commissioner’s audit and objection decisions leading to the issue of the amended assessments, the applicant must demonstrate that the matters sought to be agitated in such proceedings fall within the limits of such a challenge described in Futuris at [24] and [25].

103    As to whether the amended assessments were “tentative”, no such contention was raised by the applicant.

104    As to the question of “conscious maladministration”, the applicant contends, at a high level of abstraction, that there was “bad faith” or conscious maladministration because “the errors of law and other matters as referred to in all the grounds of the application cumulatively amount to evidence of the claim”. This is simply a rolled-up contention. Absent precision and particularity, it is difficult to make sense of the submission. Clearly, the proceedings before Edelman J and then Logan J, had no prospect of success. The absence of a final hearing on the merits, rather than an interlocutory hearing following which summary relief was granted, does not establish that the proceeding the subject of this application is not an abuse of process.

105    As to the Part IVC proceedings, the applicant neither elected to challenge the security for costs order, nor to comply with it. The Part IVC challenge to the income tax assessments was therefore deemed dismissed, and the applicant discontinued his challenge to the penalty assessments in the Tribunal. In those circumstances, it is true that there was never a hearing of the applicant’s Part IVC challenge on the merits. However, the applicant elected not to proceed with causes of action which could have been ventilated in an earlier proceeding. He failed to give an explanation for not doing so in the Clay affidavit in this proceeding, other than indirectly, by exhibiting the reasons for judgment of Edelman J, in which his Honour observed, in relation to the applicant’s decision not to comply with or challenge the security for costs order, that:

The plaintiff’s tax agent now deposes that the reasons were the short timeframe for payment, the plaintiff’s concern about further amounts that would need to be paid, and the advice of legal representatives that there was little or no prospect of success if the plaintiff did not return to Australia to give evidence.

106    Later in those reasons, further reference was made by Edelman J to explanatory affidavit material from Ms Clay in the context of the applicant’s explanation for the late invoking of the jurisdiction of the High Court, in these terms:

As the plaintiff’s tax agent deposes, the primary ground for his application in this Court is an assertion of jurisdictional error in relation to the finding of the Commissioner that he was an Australian resident. The plaintiff’s tax agent deposes that the plaintiff “has consulted four legal firms as well as eight barristers, of which four were QCs or SC on the question of residence and the possibility of proceeding”. His tax agent explains that “no barrister was willing to proceed with an application on the question of residence” and that in late November or early December 2018, the plaintiff advised the tax agent that “he would proceed with the application without legal counsel if necessary”. In submissions, however, the plaintiff alleges that his delay was caused by the Commissioner’s failure to consider or to give reasons for various legal matters, which the plaintiff said caused him to be unable to find any legal representation. The plaintiff then says that it took him time to research and understand the matters of law involved.

[emphasis added]

107    Edelman J concluded that none of the matters raised by the applicant provided a “reason for any substantial extension of time, particularly an extension of time measured in years”. The applicant made a conscious choice to abandon his Part IVC proceedings, only to subsequently seek judicial review in multiple separate proceedings. None of the explanatory material referred to by Ms Clay provides a reason for seeking to re-litigate a challenge to the amended assessments under Part IVC or a challenge under s 39B of the Judiciary Act or s 75(v) of the Constitution concerning the validity of the assessments.

Consideration: “without reasonable ground”

108    The Commissioner contends that the application for leave to appeal is a proceeding “without reasonable ground” as described earlier. The Commissioner contends that because the challenge to the amended assessments in reliance upon contended errors in the audit and objection decisions leading to the issuing of the amended assessments is not susceptible of a remedy in the form of the constitutional writs in reliance on s 39B of the Judiciary Act; and the exercise of the power under s 31A(2) of the FCA Act by the primary judge reflects no “arguable error”, the proposed proceeding sought to be initiated, that is, the application for leave to appeal, is a proceeding “without reasonable ground” and thus, a vexatious proceeding. The proceeding is without reasonable ground because it is “bound to fail” because it is an application that seeks to agitate a ground of challenge that fails to meet the requirements, even arguably, of the elements which would engage s 39B having regard to Futuris. No other ground of jurisdiction is relied upon to engage the relief claimed in the principal proceeding before the primary judge.

109    On the applicant’s submissions, however, a further question arises as to whether the proposed proceeding raises an arguable question on the ground of the primary judge’s failure to give “sufficient reasons”. In the application for leave to appeal, ground 2(a) alleges a failure to have regard to the applicant’s (written) oral submissions and table of contents, and grounds 2(b) to 2(f) and their sub-grounds then assert a failure to refer to, and assign reasons for, rejecting the applicant’s arguments regarding those matters.

110    Earlier in these reasons, reference was made to aspects of Ms Clay’s affidavit in which reference is made to the substantial volume of material filed in resisting the Commissioner’s interlocutory application under s 31A(2) of the FCA Act, and the short ex tempore reasons given by the primary judge. As part of the applicant’s central contention that the primary judge failed to give adequate reasons in support of the order dismissing the principal proceeding, the applicant emphasises a number of different arguments and contentions put to the primary judge, said not to have been considered or referred to in the primary judge’s reasons. The applicant contends that the primary judge failed to address a substantial body of material relevant to the application relied upon by the applicant in resisting the Commissioner’s application.

111    There appears to be at least some basis for this submission. The applicant filed a combined total of 150 pages of written submissions, including his oral submissions which, in fact, were reduced to writing. The primary judge’s ex tempore reasons were distilled to a short, four page judgment. The only direct reference to the applicant’s arguments is contained in a single paragraph, [13], where the primary judge summarised those arguments as follows:

Sir Hii made a particular complaint in lengthy submissions about a denial of natural justice. Of course it is a feature of an exercise of judicial power and, for that matter, administrative power, that an applicant must be afforded natural justice. Relevantly, however, that aspect of natural justice which is pertinent is the extension of an opportunity to be heard. That opportunity was extended in this Court following the institution of a tax appeal and in the Tribunal following the institution of an administrative review proceeding. But it is a misconception of the requirements of natural justice that there is a requirement that the person affected avail him or herself of the opportunity extended.

112    The primary judge characterised the procedural history as not being indicative of a denial of natural justice, but rather, “what occurred here is that Sir Hii made particular choices, choices perhaps which he has come to regret …”: at [14]. The primary judge then explained that the applicant’s failure to challenge the security for costs order in relation to the taxation appeal or non-compliance with that order amounted to a choice, rather than a denial of natural justice.

113    In submitting that this brief referral to, and rejection of, the applicant’s arguments was insufficient, as described above, the applicant relies upon the observations of the Full Court in Carlisle at [45] and the observations of Bromberg J in Alexander: see [84] and [85] of these reasons. The critical principle is that while it is not incumbent upon a judge to deal with every argument or issue that might arise in the course of a case, where an argument is substantial or an issue is significant, it is necessary to refer to and assign reasons for the rejection of the argument or the resolution of the issue.

114    The difficulty for the applicant is that although his contentions were voluminous (in quantitative terms), the arguments and issues of substance were, firstly, whether the proceeding had any reasonable prospect of success such that an order dismissing the proceeding under s 31A(2) of the FCA Act would be inappropriate, and, secondly, whether the proceeding was either an abuse of the process of the Court or a proceeding without reasonable ground. The primary judge was required to give reasons for the resolution of both of those issues. His Honour did so at [15]-[19], as summarised at [36]-[41] of these reasons.

115    In circumstances where the applicant’s collateral challenge to the amended assessments on the footing earlier described by reference to challenges to the audit and objection decisions through the vehicle of yet a further s 39B proceeding, was hopeless and found to be an abuse of process, it was not incumbent upon the primary judge to list every argument raised by the applicant in 100 pages of submissions and assign reasons for the rejection of all of them. Rather, it was incumbent upon the primary judge to give reasons for the resolution of the two primary issues in dispute, and for the rejection of any substantial arguments relevant to those issues agitated by the applicant. The primary judge was therefore entitled to distil, as the primary judge did at [13], the applicant’s arguments and choices which had led him to that position. In circumstances where the applicant’s case was hopeless, the applicant had no substantial argument as to why he should succeed in maintaining a further s 39B proceeding which suffered all of the difficulties described in these reasons. By summarising the applicant’s position in the brief manner described, the primary judge therefore did not fail to give “sufficient reasons”.

116    The applicant raises one final contention as to why the proceeding is not without reasonable ground.

117    The applicant contends that the primary judge erred in finding that proceedings had been instituted by the applicant “frequently” and without reasonable cause: at [19]. The meaning of the term “frequently” is described earlier in these reasons at [49] and [50]. As mentioned earlier, proceedings may be instituted “frequently” even where the number is quite small. Here, in circumstances where the proceeding before the primary judge represented the applicant’s third attempt at judicial review, and encompassed matters raised in the High Court in seeking relief in reliance on s 75(v) of the Constitution and which could have been or were raised in the first s 39B proceeding before Collier J, the applicant, for the purposes of determining the present application under s 37AR(2) of the FCA Act is a person who is properly characterised as having “frequently” instituted proceedings without reasonable ground.

Conclusion

118    Having regard to all of these matters, I am not satisfied, for the purposes of s 37AT(4) of the FCA Act, that the proposed proceeding “is not a vexatious proceeding”. The proposed proceeding is an abuse of process and one without reasonable ground.

119    The application for leave to institute this proposed proceeding is refused with costs and the application for leave to appeal is dismissed.

Associate:

Dated:    9 October 2020