The procedural fairness issue
165 This issue may be stated as: whether the Tribunal denied ACN 154 procedural fairness in making certain findings; in particular, whether the Tribunal denied ACN 154 procedural fairness in the Tribunal's reliance on three documents, which had not been the subject of cross-examination or submissions. This issue is raised by question of law 5A and grounds 9, 10 and 30A. Question of law 5A and ground 30A were added, by leave, during the appeal hearing.
166 At the outset, it is useful to identify the way the procedural fairness issue emerged. In ACN 154's outline of submissions for the appeal, it focussed on the Tribunal's reliance (at [168]-[169] and [172]) on two emails passing between two employees of ABC NSW. It was submitted by ACN 154 that Mr Cochineas was not a party to the emails, he was not cross-examined about them, and the Commissioner made no submissions about them. Moreover, ACN 154 submitted, the Commissioner expressly disavowed making any submission or drawing any inference that Mr Cochineas or ACN 154 knowingly participated in a fraud. ACN 154 submitted that, not only was it a fundamental denial of procedural fairness for the Tribunal to make adverse findings about Mr Cochineas and ACN 154 (Annetts v McCann (1990) 170 CLR 596 at 608), the Tribunal's gratuitous observations that Mr Cochineas was "disingenuous" about denying having suspicions about the IPJ Group and that the "applicant did not put on any evidence to explain the incident canvassed in the above emails" (at [172] and [170] respectively) were entirely unwarranted.
167 In the course of oral submissions during the appeal hearing, ACN 154 developed its submissions on these matters beyond those in its outline of submissions. In addition to the Tribunal's reliance on two emails, ACN 154 also complained about a denial of procedural fairness in the Tribunal's reliance (at [171]-[172]) on a transcript of a compulsory examination of Mr Cochineas in circumstances where, as with the emails, although included in the Hearing Book, the document was not the subject of any cross-examination or submissions.
168 Having outlined ACN 154's contentions, we now set out the relevant parts of the Tribunal's reasons.
169 The key relevant part of the Tribunal's reasons is [168]-[173], which forms part of the Tribunal's analysis of the facts relating to the IPJ Group. Before setting out those paragraphs, it is necessary to refer to some earlier parts of this section of the Tribunal's reasons in order to provide context:
(a) At [157] of the Tribunal's reasons, the Tribunal stated that: Mr Cochineas deposed (in his evidence before the Tribunal) that he and, therefore, ACN 154 were aware the IPJ Group were acquiring investment-grade bullion from ABC NSW during the relevant period; this did not give him any cause for concern and he provided various explanations; initially, he said it confirmed the business model of the IPJ Group explained to him by Mr Catanzariti at their first meeting, which was that the IPJ Group secured its supply of scrap gold by exchanging investment-grade bullion for the scrap gold of its clients. The Tribunal stated that, on another occasion, in a compulsory examination, Mr Cochineas said it was generally his understanding that persons in the industry engaged in barter transactions because they were wary of carrying cash in the sums of $50,000 or $40,000 and a bullion bar which has the equivalent value is much more transportable; Mr Cochineas also said the IPJ Group was refining the scrap gold it acquired as part of the barter to gold of 99.99% fineness and delivering it in granule form to ACN 154 for further refining.
(b) At [158], the Tribunal stated that it gleaned from numerous T-Documents and evidence, as outlined later in its reasons, that the claimed arrangements of the IPJ Group with so-called third-party jewellers and scrap dealers were entirely fabricated. The Tribunal inferred that the IPJ Group did this for several reasons including to obscure what was otherwise a 'round robin' arrangement (at least in relation to some of the gold) between the Dealers (including ABC NSW), the IPJ Group and ACN 154, and to also conceal the IPJ Group's tax evasion. The Tribunal clarified that the tax evasion that the IPJ Group was engaged in was the non-remittance by the IPJ Group to the Commissioner of the GST on its taxable supplies of scrap gold (a matter that was not in dispute before the Tribunal).
(c) At [159], the Tribunal stated that it inferred and accordingly found that the IPJ Group interposed certain entities to disguise the circularity of the arrangements between the IPJ Group, ACN 154 and ABC NSW, by giving the impression there were barter transactions with jewellers and scrap dealers in order to conceal the melting of the purchased investment-grade bullion into scrap gold. At [160], the Tribunal stated that the evidence of Mr Smith and of the Khraibt brothers (which the Tribunal had discussed) supported its conclusion that the IPJ Group entities were not in fact engaging in any trading of scrap metal or barter transactions with jewellers and scrap dealers.
170 In that context, the Tribunal stated at [168]-[173]:
168. One of the more interesting email exchanges in the hearing book which piqued our interest with respect to the relationships between the IPJ Group, ABC NSW and the applicant, and their transactions, is reproduced below. The first email was sent by Ms Camilla Baker to Ms Kim Ronaldson (the Operations Manager of ABC NSW) at 2.27 pm on 27 July 2012. It is set out to provide the contextual background to the email that follows.
Hi Kim
Just letting you know I am really unhappy with the conversation we just had regarding Phil [Cochineas] and Frank.
Being the Relationship Manager, I regard my position as one of developing and growing the business, which I have significantly proved already.
My understanding was that part of that role involves me gleaning from clients the products they need in order to service them better, and hence increasing turnover for ABC. I am aware that there is a large amount of privacy involved, and I certainly disagree that my line of questioning was not appropriate. However, I have noted our discussion and will refrain from such conversations in future.
I feel like I have had a slap on the wrist for a conversation I had with a client which was both jovial, and professional.
I'm not asking anything from you, I'm just letting you know I am really upset about it.
Camilla
169. Ms Ronaldson replied, as follows, at 2.38 pm on the same day and, afterwards, forwarded both emails to her boss, Ms Simpson, for her information.
Hi Camilla
I appreciate that you are upset about it, however this is a part of the relationship with the clients that you have to learn to manage. In this case the client has felt that you have stepped over the line and I am just passing on this information to you. As I said, whilst you may have a more relaxed and friendly relationship with them you also need to understand that at the end of the day business is business. They have felt that you overstepped the mark and I have to relay this to you.
As I also said Adrian [Catanzariti] was very insistent that you give them excellent service and they have no complaint with the way you look after their orders. He did not want this blown out of proportion and was very insistent that it remained quiet. … You just need to know where the boundaries are and those types of questions are completely off bounds. When you start talking about GST loopholes etc and this gets passed onto our refining partner its not great for any of the relationships.
Just take it on the chin and learn from the experience. I did not hear the conversation at all and was not aware of it until Phil [Cochineas] called me, as such I have to follow it up and ensure that it is dealt with.
All staff will be briefed on this as we need to be clear that we cannot ask what clients do with their product unless they are forthcoming with the information - its got nothing to do with us and we don't need to know. We have done our checks and that's all that is required.
Please lets not blow this out of proportion, I expect you to continue to develop your relationship with them.
Let me know if you want to talk further.
Thanks
Kim
170. The applicant did not put on any evidence to explain the incident canvassed in the above emails, notwithstanding that the emails refer to Mr Cochineas having specifically discussed the issue with Ms Ronaldson, and it was also escalated for Ms Simpson's attention. Ironically, Ms Ronaldson's email records enough to portray a compromising picture for ABC NSW and the applicant as to the extent of their knowledge of the IPJ Group's exploitation of the GST provisions. Furthermore, Ms Ronaldson expressly stated, that all staff at ABC NSW will be briefed on this "to be clear that we cannot ask what clients do with their product … its got nothing to do with us and we don't need to know…" She said "[w]hen you start talking about GST loopholes etc and this gets passed onto our refining partner its not great for any of the relationships".
171. Having regard to the abovementioned emails, we were interested to also read in the hearing book a transcript of a compulsory examination of Mr Cochineas on 25 March 2014, where Mr Cochineas insisted, under oath, he was unaware of any "GST fraud" and had never been queried about IPJ being involved in some sort of GST scheme in around June 2012. Moreover, Mr Cochineas maintained in that examination (which took place after the assessments had issued to the IPJ Group and before the applicant's own GST audit in respect of the Relevant Period had commenced) that he was "supremely confident" each of the applicant's clients were GST compliant.
172. Mr Cochineas did not take any steps before us to correct answers he had previously given in compulsory examinations that appeared to be incomplete or inaccurate and that were inconsistent with his affidavit evidence. Mr Cochineas is disingenuous in denying in his affidavit the existence of any suspicions about the fraudulent activities of the IPJ Group entities. The email correspondence set out at [168]-[169] above contradicts Mr Cochineas's claims that he and the applicant were entirely ignorant of any GST-related mischief by the IPJ Group entities. We infer Mr Cochineas and the applicant were aware the scrap gold (or at least some of it) being sold to the applicant by the IPJ Group for refining was being sourced from ABC NSW and, further, the barter transactions with jewellers and scrap dealers were likely a charade. We are also of the opinion Mr Cochineas and the applicant were, at a minimum, on notice the IPJ Group entities were not paying the GST to the Commissioner on their taxable supplies to the applicant. This is because, in circumstances where the IPJ Group's acquisitions were being made from ABC NSW at spot price plus a premium, the price at which the IPJ Group were then on-selling some of the gold to the applicant (spot price less discount plus GST) would not have been commercially feasible if GST was remitted. We think it highly unlikely Mr Cochineas, an astute businessman, was unaware that the IPJ Group was somehow exploiting 'GST loopholes' in circumstances where the GST issues were a topic of special interest to Mr Cochineas and the applicant from, at the latest, early 2012. At that time, it will be recalled, he and his associates prepared the Policy Document analysing whether the applicant was a recycler or a refiner (see [54] above). Based on the evidence before us, the preparation of the Policy Document coincided with the start of the applicant's business arrangements with the IPJ Group in early 2012. It will also be recalled the IPJ Group was the applicant's first 'client' and it proffered its templates to the applicant, including a tax invoice form. We consider Mr Cochineas and the applicant were aware of facts and circumstances which, at a minimum, put them on notice of the IPJ Group's fraudulent activities. These include the large value and frequency of gold transactions, the high purity of the gold delivered by the IPJ Group to the applicant, the pricing of the gold, the coincidences of timing of payments and deliveries of precious metal followed by deliveries of scrap gold, the readiness of ABC NSW to buy precious metal produced by the applicant following deliveries by the IPJ Group, and the special friendship between the Cochineas brothers and the Catanzariti brothers.
173. Our conclusion with respect to the above is, so far as relevant for present purposes, that the applicant was, at a minimum, on notice the IPJ Group entities were engaging in conduct that involved the evasion of GST, as well as the exploitation of provisions in the GST Act (the latter being the subject of these proceedings), but didn't want that fact to be known. Importantly, the applicant could and did take advantage of the situation by making creditable acquisitions. As discussed in further detail below, the exploitation of the provisions of the GST Act involved the IPJ Group making acquisitions of investment-grade bullion, then melting the gold bars such that they were no longer in precious metal form and, in turn, selling the scrap gold (or some of it) to the applicant as taxable supplies. In this way, the IPJ Group created a matching entitlement to an input tax credit for the GST payable for the applicant which was essential to perpetuate the round robin arrangement. We accept the IPJ Group was also selling some of the scrap gold to other refiners and, further, that the IPJ Group was also sourcing precious metal from other bullion dealers so that it was not necessarily always the same gold that was being sold by it in the arrangement. However, we are concerned with the IPJ Group's supplies of scrap gold of at least 99.99% fineness to the applicant.
(Footnotes omitted; bold emphasis added.)
171 After considering the facts relating to the Majid Group, Gold Buyers, and MAK, the Tribunal made some additional findings regarding the Division 165 Supplying Entities at [224] (set out at [118] above).
172 The Tribunal relied on those findings in the course of considering the list of matters in s 165-15, including the manner in which the scheme was entered into or carried out at [271] (set out at [124] above).
173 We described, at [88] above, the process by which the Hearing Book was prepared and finalised. We also note the following other matters regarding the way the proceeding was conducted. In the course of the hearing before the Tribunal, the Tribunal stated that it should not be assumed that the Tribunal had read every document in the Hearing Book and the Tribunal expected to be taken to the documents relied on by the parties (Tribunal transcript, pp 49, 175). The agreed process regarding the Hearing Book included the opportunity to object to the inclusion of a document, with the documents ultimately remaining in the Hearing Book considered to be "in evidence" (Tribunal transcript, p 50). At one point, the Tribunal indicated that, if the Commissioner wished to rely on a document, beyond a particular statement that had been put to a witness, the witness should be asked about the other aspects sought to be relied on (Tribunal transcript, p 333).
174 There is no dispute between the parties that the two emails (set out at [168]-[169] of the Tribunal's reasons) and the transcript of the compulsory examination (referred to at [171]) were included in the Hearing Book without objection. There is also no dispute that the documents were not the subject of any cross-examination or any submissions.
175 We now summarise the parties' submissions. In oral submissions at the appeal hearing, senior counsel for ACN 154 submitted that: a very large number of documents (some 60,000 pages) were forwarded by the Commissioner to the Tribunal; shortly before the hearing, ACN 154 prepared a hearing book comprising ten folders of material; there was discussion at the start of the hearing regarding the approach to documents and the Tribunal indicated that it would not have regard to material that was not referred to; in the course of the hearing, the Tribunal indicated that it wanted to ensure that witnesses were asked about documents before submissions were made about them. In that context, senior counsel submitted that there was an expectation that the Tribunal would not have regard to material that was not referred to; by the end of the trial, every document that had been relied on by the Commissioner had been dealt with by ACN 154. In relation to the emails set out at [168]-[169] of the Tribunal's reasons, it was submitted that they were not put to Mr Cochineas, and he was not a recipient of the emails or copied in on them; yet the Tribunal used the emails to find (at [172]) that Mr Cochineas and ACN 154 had knowledge (or were at least on notice) that the IPJ Group was exploiting "GST loopholes" (the expression used in the second email). Senior counsel for ACN 154 submitted that the Hearing Book contained another document (the Applicant's Response to Draft Position Paper) that made clear (at [97], [98]) that the reference to "GST loopholes" in the second email related to a different issue, namely the "IPJ Group's process of swapping precious metal for scrap material under the second hand provisions of the GST Act". It was submitted that, had Mr Cochineas been questioned about the emails, he could have explained this.
176 In oral submissions, senior counsel for the Commissioner submitted that it was not a denial of procedural fairness for the Tribunal to refer to material that was before it, whether or not it was referred to in the parties' submissions. It was submitted that: the parties agreed on the contents of the Hearing Book and the process enabled objections to be taken; ultimately, the contents of the Hearing Book were agreed at the end of the hearing; and the Tribunal referred to the Hearing Book as the "record" on which it would rely. Thus, it was submitted, the two emails and the transcript formed part of the record. Senior counsel disputed that the Applicant's Response to Draft Position Paper was in the Hearing Book as ultimately agreed; he said that it had been in the Hearing Book but ultimately was removed by ACN 154. Senior counsel submitted that there could be no criticism of the Tribunal in relying on evidence that was not addressed by the parties, where the relevant point was in issue between the parties and addressed. Senior counsel took us in some detail to the transcript of the cross-examination of Mr Cochineas to make good the proposition that the Commissioner squarely put to Mr Cochineas that he understood "what was going on". It was also submitted that [168]-[171] of the Tribunal's reasons related only to the IPJ Group and Mr Cochineas's evidence was not accepted in relation to all of the Division 165 Supplying Entities. Thus, it was submitted, [168]-[171] were not the material basis upon which the Tribunal rejected Mr Cochineas's evidence. Senior counsel indicated that the Commissioner did not accept ACN 154's explanation of the reference to "GST loopholes" in the second email. It was also submitted by senior counsel for the Commissioner that the impugned findings went to Mr Cochineas's subjective state of mind, which was a matter put in issue by Mr Cochineas in his affidavit, but was not a relevant matter for the purposes of the Div 165 issues. Those were to be determined, it was submitted, having regard to objective facts.
177 In our view, the Tribunal's reliance on the two emails set out at [168]-[169] of its reasons and the transcript of compulsory examination referred to at [171] of its reasons, in circumstances where Mr Cochineas was not a party to the emails, was not cross-examined on the documents and the documents were not the subject of any submissions by the parties, constituted a denial of procedural fairness. While it is true that the documents were included in the Hearing Book without objection, in the circumstances it could not have been reasonably expected that the Tribunal would rely on these documents to form an adverse view as to Mr Cochineas's credit or to make adverse knowledge findings against ACN 154.
178 In Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 (Alphaone), the Full Court of this Court (Northrop, Miles and French JJ) stated at 590-591:
It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material.
179 The above passage was approved by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (SZBEL) at [32].
180 In Degning v Minister for Home Affairs [2019] FCAFC 67, Allsop CJ, after referring to Alphaone and SZBEL, summarised at [12] the common law position by stating that the applicant was "entitled to have his mind directed to the critical issues or facts on which the decision was likely to turn unless the recognition of the issue was, from the material with which he was provided, an obvious and natural conclusion to draw". His Honour also stated at [13]:
One should look at the whole of the circumstances including the documents given to [the applicant] to assess whether he had his mind directed to the critical issues or factors on which the decision was likely to turn and to be informed of the nature and content of relevant material. In that assessment, it is relevant to assess what is or is not an obvious or natural evaluation of the material which need not be the subject of particular attention being drawn. The ultimate touchstone is fairness.
181 In the present case, in circumstances where Mr Cochineas was not a party to the two emails, and the two emails and the compulsory examination transcript were not the subject of any cross-examination or any submissions, we consider that ACN 154 was not on notice that the two emails and the transcript of compulsory examination might form the basis of an adverse view being taken of Mr Cochineas's credit or the basis of adverse knowledge findings against ACN 154. We have formed this view having regard to the way the proceeding was conducted, including the process by which the Hearing Book was prepared and its contents finalised, the volume of documents in the Hearing Book, the length of the hearing, the length and nature of the cross-examination of Mr Cochineas, and the presentation of detailed written and oral submissions.
182 The way in which the Tribunal relied on the documents against Mr Cochineas and ACN 154 is apparent from the first part of [172] of the Tribunal's reasons. In reliance on those documents (and without the benefit of any oral evidence or any submissions about them), the Tribunal formed the view that Mr Cochineas appeared to have given "incomplete or inaccurate" evidence under oath in the compulsory examination, that his answers in the compulsory examination were "inconsistent" with his affidavit evidence, that he was "disingenuous" in denying in his affidavit evidence the existence of suspicions about the fraudulent activities of the IPJ Group, and that the emails "contradict[ed]" his claims that he was entirely ignorant of any GST-related mischief by the IPJ Group entities. These views were formed in circumstances where, not only was Mr Cochineas not a party to the two emails, the emails were internal to another company, and the reference to "GST loopholes etc" in the second email was unexplained and possibly ambiguous. Yet, the Tribunal relied on the two emails to infer that Mr Cochineas appeared to have given false or misleading evidence in the compulsory examination. The Tribunal then went on to make adverse knowledge findings against ACN 154 in the balance of [172] and in [173]. Although the findings refer to other matters, it is impossible to exclude the possibility (and, to the contrary, it is distinctly possible) that the findings were influenced by the adverse view the Tribunal had taken as to Mr Cochineas's credit: cf Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82 at [4], [76], [80], [133]. We note that, in the middle of [172], the Tribunal stated: "We think it highly unlikely Mr Cochineas, an astute businessman, was unaware that the IPJ Group was somehow exploiting 'GST loopholes' in circumstances where the GST issues were a topic of special interest to Mr Cochineas and the applicant from, at the latest, early 2012." The expression "GST loopholes", used in that sentence, is evidently drawn from the second paragraph of the second email.
183 As noted above, it is true that the two emails and the compulsory examination transcript were included in the Hearing Book. They were therefore available to be relied on in some ways by the Tribunal (for example, by way of context or background). However, that is altogether different from the Tribunal relying on these documents as the basis for taking an adverse view of Mr Cochineas's credit and making adverse knowledge findings against ACN 154.
184 It is not necessary to determine whether the Applicant's Response to Draft Position Paper remained in the Hearing Book at the end of the Tribunal hearing. Whether or not the document remained in the Hearing Book, it demonstrates sufficiently for present purposes that there may well have been an explanation had the Tribunal's concerns regarding the two emails and the compulsory examination transcript been raised at the hearing.
185 In the circumstances, it was unfair to ACN 154 (and Mr Cochineas) for the Tribunal to rely on the two emails and the transcript of compulsory examination in forming the adverse view of Mr Cochineas's credit and making the adverse knowledge findings against ACN 154.
186 Those findings were, in our view, integral to the Tribunal's subsequent consideration of whether Div 165 operated. At various points in the balance of the Tribunal's reasons the Tribunal made adverse findings regarding Mr Cochineas's knowledge, and thus the knowledge of ACN 154. It is impossible to exclude the possibility (and, to the contrary, it seems distinctly possible) that these findings were influenced by the adverse view the Tribunal had formed as to Mr Cochineas's credit at [172] of its reasons, on the basis of the two emails and the compulsory examination transcript. We note, in particular, the following findings and observations:
(a) At [198]-[199], in the context of discussing the Majid Group, the Tribunal made adverse knowledge findings against Mr Cochineas and ACN 154.
(b) At [201], in the context of discussing the Majid Group and the failure of ACN 154 to call Mr Faraj, the Tribunal noted that Mr Cochineas's evidence had "been found wanting in a number of respects, as we have explained". It also referred to "the shortcomings in the evidence that was led".
(c) At [223], in the context of discussing MAK, the Tribunal made adverse knowledge findings against Mr Cochineas.
(d) At [224], at the conclusion of the detailed sections dealing with each of the Division 165 Supplying Entities, the Tribunal made "further findings" relating to the Division 165 Supplying Entities generally. In particular the Tribunal found that:
(i) ACN 154 was aware that the Division 165 Supplying Entities were acquiring investment-grade bullion from the Dealers (especially in the case of its related entity, ABC NSW);
(ii) ACN 154 more than likely knew the Division 165 Supplying Entities were altering the bullion so it no longer satisfied the investment form requirement of the definition of "precious metal" so as to make taxable supplies to ACN 154; and
(iii) ACN 154 was on notice these suppliers were not remitting the GST because it would have been uneconomic for them to do so.
(e) At [252], in the context of considering whether there was a "scheme", the Tribunal found that ACN 154 "knew it was uneconomic for the Division 165 Supplying Entities to sell scrap gold to it at a price that was effectively less (on a GST-exclusive basis) than that for which the Division 165 Supplying Entities were buying essentially the same gold, in the form of precious metal from the Dealers, unless they were not remitting the GST on those taxable supplies".
(f) At [271], in the course of considering the manner in which the scheme was entered into or carried out (s 165-15(1)(a)), the Tribunal stated: "As we have explained above, Mr Cochineas and Ms Simpson - but especially Mr Cochineas - were on notice (and in some cases had actual knowledge) of the fraudulent activities of the Division 165 Supplying Entities. That state of knowledge must be attributed to the applicant." Those sentences were evidently based on the Tribunal's earlier findings, including those at [172] and [224]. The language used in [271] (in particular, the reference to being on notice of "fraudulent activities") reflects language used in [172].
(g) At [279], in the context of considering s 165-15(1)(k) and (l), the Tribunal stated that ACN 154 was "at best, wilfully blind" to the creation of a contrived market in gold transactions.
(h) At [282], at the end of the section dealing with dominant purpose and principal effect, the Tribunal against stated that ACN 154 was "at least, wilfully blind".
187 While it is true that the question of dominant purpose is to be objectively assessed, the Tribunal's adverse assessment of Mr Cochineas's credit may have influenced its findings on objective facts, including whether (as the Commissioner had contended) ACN 154 ought to have known relevant matters. Thus we do not consider it possible to isolate and put to one side the Tribunal's reliance on the two emails and the compulsory examination transcript on the basis of the objective nature of the test under Div 165.
188 We note for completeness that, to the extent that ACN 154 submits that the Tribunal's knowledge findings against ACN 154 went beyond the case advanced by the Commissioner before the Tribunal, we do not accept that part of ACN 154's argument. ACN 154 relies on the Commissioner's statement before the Tribunal that he was not alleging that ACN 154 was a party to the fraud being perpetrated by the Division 165 Supplying Entities, namely, the tax evasion (see the Tribunal transcript, p 738 and the Tribunal's reasons at [225]). However, that statement was expressed in quite specific terms, referring to not alleging that ACN 154 was a party to the tax evasion. The Tribunal's findings were not inconsistent with that limitation on the Commissioner's case.
189 In light of the above, it is established that the Tribunal denied ACN 154 procedural fairness and that the denial was material. It follows that the Tribunal's conclusion that Div 165 operates must be set aside and the issue of the operation of Div 165 re-determined. In these circumstances, it is strictly unnecessary to deal with the remaining grounds. However, we will deal with those grounds, briefly, for the sake of completeness.