Federal Court of Australia

Jarvis-Lavery v Commissioner of Taxation [2023] FCA 1382

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time is dismissed.

2.    The Applicant pay the Respondent’s costs, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

HESPE J:

BACKGROUND

1    This is an application for an extension of time to appeal from a decision of the Administrative Appeals Tribunal affirming objection decisions of the Commissioner to disallow an objection by the Applicant pursuant to s 14ZZ of the Taxation Administration Act 1953 (Cth).

2    Adopting the language of Steward J in Frugtniet v Tax Practitioners Board [2018] FCA 387 at [3], the history of this matter is regrettable. The Commissioner’s objection decisions were made on 17 April 2013. The Applicant applied to the Tribunal for review of those decisions on 31 July 2013. The applications were heard over two-and-a-half days between 19 and 21 September 2016. Closing written submissions were filed following the hearing, with final reply submissions to be filed by 18 November 2016. The Tribunal decision records final submissions being received on 3 January 2017. On 31 July 2018 the Applicant’s legal representative at the time, Mr Swanwick, was advised by the Tribunal that the presiding member had ceased to be a member of the Tribunal. Unfortunately no decision had been made by the Tribunal prior to that date.

3    On 25 November 2019, the President of the Tribunal made a direction pursuant to s 19D of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) that a differently constituted Tribunal (consisting of Deputy President McCabe, Senior Member Olding and Member Ranson) take over the proceedings.

4    On 13 December 2019, the reconstituted Tribunal made a decision affirming the objection decisions. The Tribunal made its decision after reviewing the audio-visual recording and reviewing the transcript and all witness statements and other documentary evidence and written submissions (Tribunal Reasons: [16]).

5    Notice of the Tribunal’s decision was provided to Mr Swanwick on or about 13 December 2019. Mr Swanwick had retired from legal practice on 30 June 2019. Mr Swanwick emailed the Applicant on or about 13 December 2019 informing him of the Tribunal’s decision. Mr Swanwick received no response from the Applicant and the Applicant has no record of receiving such an email. The Applicant made enquiries of the Tribunal registry on 4 February 2020 enquiring about the progress of his proceeding. The Tribunal provided the Applicant with a copy of the decision by email on 5 February 2020.

6    The application to this Court seeking to appeal the decision of the Tribunal was made on 22 March 2022.

Legislative provisions

7    Sections 19D(2) and (4) of the AAT Act provides:

(2)    At any time after the hearing of a proceeding commences and before the Tribunal determines the proceeding, the President may revoke a direction under subsection 19A(1) in relation to the proceeding and give another such direction, if:

(a)    the member, or one of the members, who constitutes the Tribunal for the purposes of the proceeding:

(i)    stops being a member; or

(ii)    is for any reason unavailable; or

(iii)    is directed by the President not to take part in the proceeding; or

(b)    the President considers that doing so is in the interests of achieving the expeditious and efficient conduct of the proceeding.

…

(4)    The reconstituted Tribunal must continue the proceeding. For this purpose, it may have regard to any record of the proceeding before the Tribunal as previously constituted (including a record of any evidence taken in the proceeding).

8    Sections 44(1) and (2A) of the AAT Act provide:

(1)    A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.

Note 1:    This Part does not apply to certain migration proceedings (see section 43C).

Note 2:    A party to a child support first review may in some instances appeal instead to the Federal Circuit and Family Court of Australia (Division 2) (see section 44AAA).

…

(2A)    An appeal by a person under subsection (1) or (2) shall be instituted:

(a)    not later than the twenty-eighth day after the day on which a document setting out the terms of the decision of the Tribunal is given to the person or within such further time as the Federal Court of Australia (whether before or after the expiration of that day) allows; and

(b)    in such manner as is prescribed by rules of court made under the Federal Court of Australia Act 1976.

Extension of time

9    The principles applying to the grant of an extension of time are well-established. Relevantly:

(1)    The time limit for the instituting of an appeal, provided for in s 44 of the AAT Act, represents the legislature’s judgment that the welfare of society and the broader interests of the administration of justice is best served by appeals being instituted within a particular period of time: Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 403 ALR 604 at [34]. The limitation period is the general rule and an extension is an exception to it: Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 at 553 (McHugh J).

(2)    The ultimate object to be secured by the exercise of a discretion to extend time is the interests of justice. An extension of time ought to be granted where the interests of justice requires: Brown v Commissioner of Taxation [1999] FCA 563 at [47].

(3)    Relevant, non-exclusive guiding principles were enunciated by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; (1984) 3 FCR 344 at 348–49. The matters to be considered included:

•    the length of the delay;

•    the explanation for the delay;

•    the merits of the substantive application;

•    any prejudice to the respondent that would be caused by the grant of an extension (see Logounov v Federal Commissioner of Taxation [2000] FCA 1745; (2000) 46 ATR 158 at [23]; Peczalski v Comcare [1999] FCA 366 at [22]).

(4)    The reasons for the time limit not being complied with are relevant but not the sole consideration: Comcare v A’Hearn (1993) 45 FCR 441 at 444.

(5)    Reopening a decision in a public law context may more readily give rise to prejudice to the decision-maker than private tax disputes: Brown at [53].

(6)    The stronger the applicant’s case, the more likely it is that an extension will be granted: Brown at [58].

10    The overriding consideration is the interests of justice.

Delay

11    This is a case involving significant delay of two years. The applicant relied upon the following as explanation for the delay in filing his appeal.

Pandemic

12    The Applicant resided in France between 15 November 2017 and 29 September 2022.

13    The Applicant did not receive a copy of the Tribunal decision until 5 February 2020. Although his former advisor Mr Swanwick may have received a copy on the day the Tribunal issued its decision (and this Court finds that on the balance of probabilities, Mr Swanwick did so receive a copy), the Applicant had deleted Mr Swanwick from his contacts as Mr Swanwick had retired. Any email correspondence from Mr Swanwick forwarding a copy of that decision was not received by the Applicant because the Applicant’s computer would have recognised such an email as junk, not being from a person the Applicant recorded as a contact.

14    Upon receiving a copy of the Tribunal decision the Applicant contacted Ms Rados (his then solicitor in a related Supreme Court matter). Ms Rados sent a brief to Mr Kaskani of counsel, to advise on appealing the Tribunal decision to the Federal Court.

15    Between 8 and 11 February 2020, the Applicant was in London and whilst visiting a friend accidentally left his laptop there. The laptop held copies of documents relating to his dispute with the Commissioner.

16    On 18 February 2020, Mr Kaskani provided preliminary advice to the Applicant but to form a concluded view, Mr Kaskani requested further information relating to the evidence provided to the Tribunal. The Applicant considered that the further information was on his laptop which he had left in London. Mr Kaskani also advised the Applicant that his time to appeal had expired and he would need an extension of time to institute an appeal.

17    On 4 March 2020, France introduced COVID-19 restrictions. The Applicant was residing with his elderly mother-in-law and became fearful of COVID-19 and its potential to cause serious disease, particularly to his mother-in-law to whom he was very close.

18    COVID-19 restrictions prevented the Applicant from readily traveling to London to retrieve his laptop. The Applicant’s evidence was that because he resided in rural France mail deliveries were difficult while COVID-19 restrictions were in place. In May 2020 the Applicant’s friend at whose place he left his laptop died from COVID-19.

19    The Applicant’s wife was with her mother in Australia between 21 February 2020 and 31 July 2020 whilst the Applicant remained in France. The Applicant looked after his mother-in-law upon her return to France at the end of July 2020.

20    From 2 February 2022, France progressively lifted its restrictions. The Applicant’s daughter retrieved his laptop, after arranging for someone she knew in England to retrieve it, and the Applicant regained possession of the laptop in February 2022. Just how it came to thereafter be returned to the Applicant was not clear. The Applicant’s evidence was that the laptop was “eventually brought back to [him] in France”.

21    The present application was made on 22 March 2022.

PTSD

22    In February 2010, the Applicant was diagnosed with PTSD arising from his volunteering during the 2009 Black Saturday Victorian bushfires. The Applicant claims that he continues to suffer mild anxiety attacks and depression, which become more acute when he is under extreme pressure and stress. At those times, the Applicant has difficulty concentrating and completing tasks he finds stressful. Episodes can last up to two weeks. Being apart from his wife between February and July 2020 and being responsible for the care of his mother-in-law from the end of July 2020 were periods of high stress for the Applicant.

Consideration of Explanation for Delay

23    The Applicant’s explanation for the delay of two years is far from adequate.

24    First, there is no medical evidence before the Court that supports a finding that any part of the delay was attributable to the Applicant’s PTSD.

25    Second, in so far as his reliance on COVID-19 restrictions is concerned, the following observations are made:

(a)    The ground of appeal in this Court is based solely on the procedure adopted by the Tribunal. That ground is unrelated to the precise content of the spreadsheets before the Tribunal and relates primarily to the chronology of events and the facts surrounding the making of the Tribunal decision. It is not clear how the content of the Applicant’s laptop could bear on the formulation of that ground of appeal. It was always open to the Applicant to file an originating application raising procedural fairness grounds.

(b)    The Court does not accept that there was a complete inability for the Applicant to obtain possession of his laptop for two years. Deliveries by courier occurred during the pandemic (albeit with delays). The Applicant’s wife and mother-in-law managed to leave France and come to Australia between February and July 2020 whilst the Applicant claimed it was impossible for his laptop to be returned to him in that time. There is also a logical inconsistency in the Applicant saying he was unwilling to trust custody of his laptop to a courier or to anybody whilst at the same time leaving his laptop in the house of his deceased friend for over a year. There is no evidence of who, if anybody, was caring for his deceased friend’s residence following his death. The Applicant’s evidence was that his friend had lived by himself at the time.

(c)    The Applicant had received advice in February 2020 that the time for instituting an appeal had already lapsed. It was not reasonable for the Applicant to fail to file any originating application at all for two years after that time.

26    Third, the Applicant’s own affidavit evidence was that, at least for some time after receiving the advice in February 2020 that the time for appeal had lapsed, he was “predisposed to ignoring and not actioning the appeal”. The Court notes the following:

(a)    On 15 July 2016, a representative from the Australian Taxation Office (ATO) sent the Applicant a letter demanding payment of the amounts assessed as income tax, GST and penalties plus interest and gave the Applicant notice that it proposed to commence proceedings for recovery within 14 days.

(b)    In 2016, the Deputy Commissioner commenced proceedings against the Applicant in the Supreme Court of Victoria for recovery of the tax debts.

(c)    Although it is not entirely clear, it appears that as at March 2020 no further steps had been taken in relation to the recovery proceedings.

(d)    The Applicant testified that because the ATO had not taken steps to progress the recovery proceeding, he was “predisposed to ignoring and not actioning” the appeal against the Tribunal decision.

(e)    On 3 December 2021, the Commissioner filed an application for summary judgment in the Supreme Court which was granted by Hetyey AJ on 1 June 2022.

27    The Applicant’s explanation for the delay of two years is not accepted. Given the length of delay and its unexplained nature, the Applicant needs to demonstrate that the proposed ground of appeal is nonetheless strong enough as to warrant a grant of an extension of time. The Court now turns to consideration of the proposed ground of appeal.

Ground of appeal

28    The Applicant’s amended supplementary draft notice of appeal proposes a single ground of appeal — a denial of procedural fairness in connection with the making of the decision because the reconstituted Tribunal did not provide the Applicant with an oral hearing before making the decision.

29    Paragraph [14] of the Tribunal Reasons record:

After a discussion with the parties’ representatives at a directions hearing earlier this year, it was determined that the applications should be decided by a reconstituted Tribunal by reference to the transcript and recording of the oral hearing and the witness statements and documentary evidence, and the parties’ written submissions. Neither party submitted that any further oral hearing should be conducted.

(citations omitted.)

30    It was not disputed that the Applicant had not consented to the reconstituted Tribunal determining the matter “on the papers”. There was some factual dispute as to what occurred at a directions hearing convened by Deputy President Forgie on 15 March 2019 at which proposals for the determination of the proceedings were discussed.

31    I make the following findings.

32    On 31 July 2018 a person from the Tribunal registry contacted Mr Swanwick and informed him that the Deputy President who had heard the proceedings had ceased to be a member and had not finalised a decision. Mr Swanwick was asked to consider whether the Applicant would have any objection to another Tribunal member determining the matter based on a review of the papers and transcript. Mr Swanwick expressed “complete and utter dismay” about the amount of time that had elapsed and concern about decision-makers resorting to the transcript without seeing witnesses. Having expressed incredulity to the Tribunal registry representative that members could cease their commission without finalising their reserved decisions, Mr Swanwick sought instructions from the Applicant who at that time was in France.

33    There is no evidence before the Court of what occurred between August and October 2018. At some point prior to 23 October 2018 Mr Swanwick informed the Applicant that the Deputy President who had heard the proceedings had ceased to be a member and had not finalised a decision. On 23 October 2018, the Applicant contacted Mr Swanwick by email seeking an update “regarding the AAT and their problem”.

34    The Tribunal registry representative attempted to follow up with Mr Swanwick and left voicemail messages on 5 November 2018 and in January 2019. In the meantime, the Applicant had sought to arrange a call with Mr Swanwick to “further progress the AAT matter” but as at 19 November 2018 had received no response from Mr Swanwick. The Applicant emailed Mr Swanwick on that day seeking confirmation that Mr Swanwick continued to represent him. It appears that the Applicant’s correspondence was not received by Mr Swanwick.

35    The associate to Deputy President Forgie notified Mr Swanwick on 26 February 2019 that a telephone directions hearing would be held on 5 March 2019 to discuss how to progress the matter. Mr Swanwick advised by email sent on 3 March 2019 that he was unavailable and could not confirm that he still held instructions from the Applicant to act in the matter. On that same day, Mr Swanwick emailed the Applicant stating that he had “been calling and emailing [the Applicant] on all known contact numbers, without success. This is the final attempt” and informing the Applicant of the upcoming directions hearing. Mr Swanwick records in that email that he had had “no instructions from [the Applicant] since the end of the hearing” and that he did not know “what [the Applicant’s] attitude is”. Mr Swanwick stated that he would “not be in a position to act for [the Applicant] in the matter in the near future…[as he was] retiring from practice on 30th June” and that between March and June he would be travelling.

36    Mr Swanwick made contact with the Applicant on 3 March 2019 via email and telephone. Mr Swanwick emailed the Tribunal again on 3 March 2019 confirming that the Applicant was not in Australia. In that email Mr Swanwick recorded the Applicant’s “attitude” to be:

a.    It is utterly extraordinary that such a thing can have been allowed to happen unless it was precipitated by (eg) serious health issues or something analogous.

b.    The fact that it has happened is inescapably prejudicial to [the Applicant], because neither of the (realistic) options is really acceptable. Either the entire matter is to be relitigated before a new Member; or some other person must examine the record and reach a decision without any of the advantages of having seen the witnesses.

c.    The former option has been rendered impracticable by issues of costs, as well as the effluxion of time now having meant that some key witnesses are no longer available. It could only seriously be considered if someone (meaning, the AAT as the entity which has created the problem) met the costs thereof including costs of retaining and briefing new counsel because [Mr Swanwick] will be retired from practice by that time.

d.    The latter option has the disadvantage already mentioned. The written word never has the same impact as seeing witnesses; and that is heightened by the fact that [the Applicant] is not even really aware what "the record" would consist of, since he was not in a position to obtain a transcript of the hearing.

37    After receiving a copy of Mr Swanwick’s email to the Tribunal the Applicant emailed Mr Swanwick stating:

This entire problem is at the feet of the AAT / ATO -

The most equitable way forward of the two suggestions, in my opinion, is to start again but in order for that to happen I would need the AAT to pay my new costs plus an undertaking from the ATO not to stop me coming and going AND not to further abuse process via the Supreme Court hearing and either withdraw that or make it subordinate to the outcome of the AAT process including any appeals therefrom.

38    The Tribunal directions hearing was rescheduled and took place on 15 March 2019. The file note of a representative of the ATO records Mr Swanwick as arguing against the matter being reheard and:

suggesting the matter should be adjourned sine die. He details how the Applicant has now moved overseas, that one of the key witnesses (who was not a witness at the hearing is dead) and that many of the documents were wrapped up in the Family Court proceedings that the Applicant had against his wife…

39    The author of the note was cross-examined. I accept that the note records the author’s views of what he considered to be the important aspects of the hearing. The note is not and does not purport to be an objective transcript of what was said at the directions hearing. I do not accept the note to be a complete record of everything that Mr Swanwick said to the Tribunal.

40    By email sent on 16 March 2019, Mr Swanwick gave the Applicant the following summary of what transpired at the directions hearing:

I expressed incredulity at the situation which had arisen – AAT agreed and was very embarrassed…only choices are convene for rehearing or assign to a member to decide it on the papers including transcript and recording of hearing – I suggested another option was just adjourn sine die – ATO not prepared to leave it undecided – AAT believes no power to effectively just walk away – lengthy discussion about practicalities of trying to rehear with huge document problems, witnesses unavailable or hard to contact – need to brief new counsel when I retire – cost etc – AAT [ruled] it had to be done on the papers – they'll let us know when a member is assigned, and try to give us a time estimate then.

41    Mr Swanwick in cross-examination said that he put a hierarchy of options to the Tribunal, the second last of which was a rehearing (without requiring the Tribunal or the respondent to bear the cost) and the last of which was a determination on the papers. Mr Swanwick conceded that he could not recall the precise detail of what happened in what sequence at the directions hearing. Mr Swanwick testified that his summary to the Applicant was not intended to be a complete record.

42    I find on the balance of probabilities that Mr Swanwick did not make an unqualified request to the Tribunal for a further hearing. He had not received instructions to put such an option to the Tribunal. Indeed, in his email correspondence, and as reflected in the email he sent to the Applicant, he had raised with the Tribunal reasons why a rehearing was not feasible. Mr Swanwick’s oral testimony is not preferred over the contemporaneous (or near contemporaneous) emails he authored to both the Tribunal and to the Applicant. I find that the Applicant (through Mr Swanwick) requested that the matter be adjourned sine die and having had that request denied, requested that any rehearing be at the expense of the Tribunal.

43    Furthermore, even if the Applicant had made an unqualified request to the Tribunal for a rehearing, a refusal of that request would not amount to a denial of procedural fairness.

44    As Steward J stated in Frugtniet at [28]–[29] (affirmed by the Full Court in Frugtniet v Tax Practitioners Board [2019] FCAFC 193 at [43]):

[28]    In my view, the statutory scheme for reconstituting the Tribunal does not require, in every case, a fresh oral hearing. The power to continue proceedings is broadly conferred by s 19D(4) of the Act and leaves it largely to the Tribunal to determine how it is to be informed: Murray v Repatriation Commission No 2 [2016] FCA 1216. In some cases, the Tribunal might form the view that a further hearing is needed. That might arise if the credit of a witness is sought to be impugned because of his or her performance in the witness box. In other cases, consideration of the transcript of evidence, witness statements and tendered documents might suffice. In Ahmed v Minister for Immigration and Multicultural Affairs (2001) 184 ALR 343, Hely J considered s 422 of the Migration Act 1958 (Cth), which at the relevant time provided:

(1)    If the member who constitutes the Tribunal for the purposes of a particular review:

(a)    stops being a member; or

(b)    for any reason, is not available for the purpose of the review at the place where the review is being conducted;

the Principal Member must direct another member to constitute the Tribunal for the purpose of finishing the review.

(2)    If a direction is given, the Tribunal as constituted in accordance with the direction is to continue to finish the review and may, for that purpose, have regard to any record of the proceedings of the review made by the Tribunal as previously constituted.

(3)    In exercising powers under this section, the Principal Member must have regard to the objective set out in subsection 420(1).

The applicant in that case had argued that he should have been given a further oral hearing upon the reconstitution of a hearing of the Refugee Review Tribunal. Hely J rejected that contention. His Honour said at par [24]:

In my view, the applicant’s contention fails. RRT, as originally constituted, complied with s 425. As Wilcox J observed in Liu, if Parliament had intended to require the substituted member to hold a fresh oral hearing, the appropriate course would have been to insert a requirement to that effect in s 422 and s 422A. But Parliament did not do this. Instead, it commanded the substituted member merely to “finish the review” with an express provision that, for that purpose, the substituted member was entitled to have regard to any record of the proceedings of the review made by the Tribunal as previously constituted.

In my view, the foregoing passage applies with equal force to s 19D(4) of the Act, which requires the member to “continue the proceeding”.

[29]    This is a case where, to use the language of Ryan J in Abujoudeh v Minister for Immigration and Multicultural Affairs (2001) 115 FCR 179, “the approach which led the Tribunal to characterise certain parts of the applicant’s claims as implausible, was based on a dispassionate analysis of the content of the applicant’s evidence, not the manner in which it was given” (at par [32]). It was thus proper for the Tribunal to reject explanations and answers given by the applicant, and even make findings that he had misled the first Tribunal, without the need for any further hearing. Whilst I accept that the finding that the applicant has misled the Tribunal was serious, it was open to the Tribunal so to conclude on the material before it without the need for a further oral hearing. As will be seen, in 2016 the applicant was given a full opportunity to meet this contention (see par [31] below).

45    The Applicant submitted that “the complexity of the evidence and submissions provided by the Applicant” created a real and substantial risk that the Tribunal could not competently evaluate the matter without an oral hearing. There is an air of unreality about the Applicant’s submissions contending a denial of procedural fairness, given the nature of the evidence before the Tribunal in this case. The nature of the evidence was such that it was largely not adduced through oral testimony. The material before the Tribunal, in essence, took the form of three spreadsheets which had not been created contemporaneously with the transactions they were purporting to explain. The spreadsheets comprised many entries but few were the subject of specific explanation. The oral evidence was heard within two-and-a-half days. The parties were directed at the end of the original Tribunal hearing to provide closing written submissions. The parties were given the opportunity to make detailed submissions on the nature and content of the documentary evidence, including the spreadsheets.

46    The reconstituted Tribunal did not need to make findings about the credit of the witnesses based upon their demeanour in the witness box. The reconstituted Tribunal had access to and viewed the video recording and transcript of the hearing. Its findings were reached largely based upon a dispassionate analysis of the chronology of events and an assessment of the content of the documentary evidence before it. The conclusions of the Tribunal were not reached based on an evaluation of the manner in which oral evidence was given.

47    There is no substance to the Applicant’s complaint now that he was denied an opportunity to answer questions that the Tribunal may have raised with him at an oral hearing. At the conclusion of the Tribunal hearing, the Tribunal had made directions for the filing of written closing submissions and made it abundantly clear that the parties were not returning for any further hearing. The Applicant’s representative did not at that time submit to the Tribunal as originally constituted that oral closing submissions were necessary.

48    The Applicant’s example of how he may have been able to address a concern of the Tribunal about an inability to reconcile two differing treatments for the same transaction if he had been accorded a further oral hearing does not demonstrate a denial of procedural fairness. The Applicant’s example relied upon paragraphs [85] to [87] of the Tribunal Reasons where the Tribunal found:

[85]    As noted, [The Applicant] presented the AJL Analysis as a running account between himself and Mr Reason and his associated entities. It was, in effect, a loan account.

[86]    [The Applicant] also prepared a ‘GST Transaction Guide’ for this proceeding. Examination of that document reveals entries for a series of receipts from customers in the quarter ended 30 June 2008. These include five amounts of $10,000 from Laundry Assets Pty Ltd (one of Mr Reason’s entities) on which GST of $909.09 is indicated for each transaction, and a similar entry for $1,500 from the same company also showing GST payable by [The Applicant]. As those six entries also appear in the AJL Analysis, in that document they purport to be simply part of the running balance arrangement.

[87]    These two alleged treatments are entirely inconsistent. The same payments cannot be both payment of consideration for services as the GST Transaction Guide indicates and merely an entry in a loan account in repayment of a debt as their inclusion in the AJL Analysis indicates. They may conceivably be one or the other, but they cannot be both.

49    Before the Court, the Applicant submitted that:

For example, the reconstituted Tribunal could not reconcile how payments received by the Applicant could be both payment of consideration for services and also a repayment of a debt. The reconstituted Tribunal considered that they must be one or the other, but not both. Had the Applicant had an opportunity to make a submission to the reconstituted Tribunal directed at this issue, the Applicant could have explained that such a situation would occur where he had provided services to Mr Reason’s entities at an earlier point in time without being paid, resulting in an account receivable (or debt) from Mr Reason’s entity. The subsequent payment of that account receivable would be both the repayment of a debt and the payment of consideration for GST purposes, where the Applicant had accounted for GST on a cash basis. Because no hearing was held, the Applicant was denied the opportunity to advance his case by moulding his submissions ‘to the issues that the decision maker appears to regard as important’. It is difficult to see how the reconstituted Tribunal merely reviewing an audio-visual recording of the original hearing was able to provide the Applicant same opportunity [sic] or advantage, as the Commissioner asserts.

(citations omitted.)

50    That explanation is not based on any facts found by the Tribunal. There was no finding of the Applicant providing services to Mr Reason for which the Applicant was renumerated for or for which he rendered invoices. Furthermore, the running balance account to which the Tribunal referred was not a ledger account based on invoices rendered or accounts due for payment by Mr Reason to the Applicant. It was supposedly a reconciliation of payment inflows and outflows. As the Tribunal observed (at Tribunal Reasons [76], [85] and [94]):

[76]    The ‘reconciliation’ spreadsheet [the Applicant] produced for this proceeding, called the ‘AJL Analysis’, demonstrates, so the submission goes, that this was the net effect of what he called an ongoing ‘running balance’ account.

…

[85]    As noted [the Applicant] presented the AJL Analysis as a running account between himself and Mr Reason and his associated entities. It was, in effect, a loan account.

…

[94]    Finally in this regard, we note some of the amounts that [the Applicant] received but said belonged to Mr Reason were invested in higher interest earning accounts, without any accounting to Mr Reason for the interest earned. That seems to be inconsistent with the accounts being, as [the Applicant] termed them, merely a ‘conduit’ for Mr Reason’s money.

(citations omitted.)

51    The Applicant submitted that a Tribunal decision on the papers would have been prejudicial because the “papers” were incomplete. According to the Applicant, from a review of the Tribunal file by the Applicant’s former solicitor, as lodged with the Tribunal by the Applicant, the file “appeared to be missing Documents 19 and 24 in the ‘Light Blue Folder’”. In these circumstances, the Applicant submits that a further hearing was required as it would have provided “an opportunity to check with the applicant [that the Tribunal had] all the papers”. According to the affidavit of the Applicant, the “Blue Folder” was lodged with the Tribunal on 22 July 2016 as a “consolidation and condensation of the documents that had previously been provided to the Tribunal”.

52    The Applicant has provided no evidence as to the content of Documents 19 and 24 or whether there were documents behind these tabs at the time the Applicant provided them to the Tribunal. The extract of the transcript provided to this Court of the Tribunal hearing does not reference a folder having been tendered in its entirety. The Exhibit List set out in that part of the transcript provided to the Court refers to specific tabs of a folder lodged by the Applicant on 6 October 2014. The Applicant has not proven that on the balance of probabilities the materials behind tabs 19 or 24 were tendered before the Tribunal. There is no evidentiary basis for a conclusion that the reconstituted Tribunal did not have a copy of all documents tendered in evidence.

53    Whether a further hearing was required was a matter for the Tribunal to determine. If the reconstituted Tribunal had matters it considered would be assisted by further address from the parties, it was open to the Tribunal to ask the parties. Having been informed of the composition of the reconstituted Tribunal, it was also open to the Applicant to ask for a further opportunity to make additional submissions. The Applicant did not do so.

54    The Applicant sought to rely upon the cases of Nais v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77; (2005) 228 CLR 470 and Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273 to support the proposition that delay between hearing and final decision could amount to unfairness.

55    To the extent that the Applicant sought to rely upon delay between the hearing before the Tribunal and the Tribunal’s decision, that submission is rejected. The issue is whether delay by the Tribunal created a real and substantial risk that its own capacity for competent evaluation was diminished (Nais at [10]). Here the delay by the original Tribunal could not have diminished the capacity of the reconstituted Tribunal for competent evaluation. Either the reconstituted Tribunal had the capacity to competently evaluate the material on the papers and by recourse to the audio-visual recording or it did not. Any delay by the original Tribunal member who first heard the matter is irrelevant to that capacity. The capacity of the reconstituted Tribunal for competent evaluation was not diminished by reason of an effluxion of time between oral hearing of evidence and the making of the decision. Whilst unfortunate and highly regrettable, the delay between hearing and decision is irrelevant to the issue of procedural fairness in this case.

56    The ground of appeal relates to the failure by the reconstituted Tribunal to accord procedural fairness by making a decision without affording the Applicant a further oral hearing. The prejudice that was said to be suffered was the loss of an opportunity to convince through an oral hearing the newly constituted Tribunal. Any such prejudice is not a function of delay in decision-making by the reconstituted Tribunal but a function of the previous presiding member ceasing to be a member.

57    In written submissions, the Applicant also referred to the fact that one of the reconstituted Tribunal members was appointed just 15 working days before the Tribunal decision. The implicit contention appeared to be that the member could not have properly evaluated all of the Applicant’s evidence and information within that “short time”. If such a contention is sought to be made, it does not relate to the ground of appeal and is no more than an unsupported assertion that 15 working days must be inadequate.

58    The Court does not consider that the proposed ground of appeal based on a denial procedural fairness has sufficient merit to warrant an extension of time being granted in the circumstances of this case.

59    The application for an extension of time is dismissed with costs.

Associate:

Dated:    10 November 2023