Taxation Administration Act 1953 - Part IVC, s 14ZZK

Administrative Appeals Tribunal Act 1975 - s 2A, 33, 39

Boucher v Australian Securities Commission [1996] FCA 1523

Boucher v Australian Securities Commission [1996] FCA 1915

Bushell v Repatriation Commission (1992) 175 CLR 408; [1992] HCA 47

Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22

Re Confidential and Commissioner of Taxation [2013] AATA 382

Re Kowalski and Military Rehabilitation and Compensation Commission [2007] AATA 1988

X v Minister for Immigration & Multicultural Affairs [2002] FCAFC 3

1. The applicants are husband and wife who have had dealings over the years with a Samoan bank named Hua Wang Bank Berhad.
2. The Commissioner audited the applicants' tax affairs and formed the view that the returns they had lodged were not accurate. The Commissioner considered, among other things, that some of the dealings with the bank were a sham - that the outward appearance of the transactions masked their true nature. The Commissioner made amended assessments of the applicants' income tax liability. Objections against the amended assessments were unsuccessful and so the applicants asked the Tribunal to review the objection decisions.
3. The proceedings were heard over four days, on 2, 3, 4 and 22 April 2014. The first three and a half days were devoted to the taking of evidence. The afternoon of the fourth day, which was the Tuesday after the Easter break, was spent on closing addresses, written submissions having been provided to the Tribunal by both parties on the previous business day. At the end of the fourth day I reserved my decision.
4. Five days later, on Sunday 27 April 2014, the applicants' counsel Mr Hyde Page wrote to the Commissioner's solicitor, asking whether the Commissioner "would be minded to support an application to re-open evidence in this proceeding" for the purpose of hearing from one further witness - a former director of the Hua Wang Bank. The Commissioner indicated through his solicitor that he was not so minded. In due course, on 30 April 2014, an application to re-open was made, by email, by Mr Hyde Page on behalf of the applicants. The Commissioner opposed the application.
5. Mr Hyde Page's email said in part, by way of explanation:

Due to recent events the Applicants wish to apply to re-open the evidence in these proceedings so that the Tribunal can receive the evidence of Mr Bede Carran, a former director of the Hua Wang Bank, and if necessary so there can be cross-examination of Mr Carran.

1. The only basis on which the application was put at that time was to enable the Tribunal to "receive the evidence of Mr Bede Carran ... and if necessary so there can be cross-examination of Mr Carran". I will refer to this basis - the newly discovered availability of Mr Carran to give evidence - as the "First Development".
2. The application to re-open was heard by me on 29 May 2014. Mr Hyde Page appeared for the applicants and Mr McGovern SC appeared for the Commissioner. By that time the applicants had identified an additional issue (the "Second Development") which they wanted to raise in support of the application. This additional issue is discussed later in these reasons, at [23]-[25].

1. The written evidence on which the applicants rely in support of the First Development comprises:
   • A witness statement made by Mr Bede Carran, and dated 27 May 2014;
   • An affidavit sworn by Mr Eric Clayton Herman on 27 May 2014;
   • Three documents appended to the "Application to re-open", those documents described by Mr Hyde Page as "court orders that show subpoenas issuing to Mr Carran in three different Federal Court proceedings", namely:
     • Hua Wang Bank Berhad v Commissioner of Taxation, NSD653/2011;
     • Fitzroy Services Pty Ltd v Commissioner of Taxation, NSD172/2012; and
     • Pilmora Pty Ltd ATF Townsing Family Trust v Commissioner of Taxation, VID1337/2013.
2. I note that the appended order in the Fitzroy Services matter does not deal with the issue of a subpoena; it is an order granting leave to the applicant to file and serve an affidavit of Mr Carran. However, there is annexed to Mr Carran's witness statement dated 27 May 2014 the subpoena that was served on him in those proceedings. That document seems to answer the description given by Mr Hyde Page.
3. The Commissioner relies on an affidavit affirmed by one of his officers, Ms Jane Damyan, on 20 May 2014.
4. Neither Mr Carran nor Ms Damyan was required for cross-examination. Mr Herman, on the other hand, was cross-examined by Mr McGovern.

1. Mr Carran explains in his witness statement that between January 2000 and late 2002 or early 2003 he was employed by an organisation called Asiaciti Trust at its Samoan office and in that capacity he was a director of Hua Wang Bank. He also explains that he gave evidence in the Fitzroy Services and Hua Wang Bank proceedings in Australia, but "only after an Australian court had issued a subpoena that required [him] to attend as a witness"[1].
2. His witness statement continues:

[6] The principal person who I had dealings with in relation to the above proceedings (and giving evidence in those proceedings) was Mr John Hyde Page, who I have spoken to many times on the phone over a period of several years and who I have met in person twice. In response to Mr Hyde Page's queries about whether I would give evidence in Australia in Hua Wang Bank v Commissioner of Taxation I said words to the following effect:

I am reluctant to give evidence about my time as a director of the Hua Wang Bank as I have not had an involvement in Hua Wang Bank or Asiaciti Trust for many years and I do not live in Australia. But if you issue me with a subpoena to give evidence then I will do so.

[7] I recall some conversations with Mr Eric Herman of Henry Davis York about the proceedings I mention above, but not in great detail.

[8] I ended up giving evidence in Australian (sic) in both Fitzroy Services and Hua Wang Bank after the issue of a subpoena in those proceedings.

[9] During the course of 2013 I spoke to John Hyde Page about giving evidence in other proceedings, aside from the ones I mention above. I do not specifically recall which proceedings we talked about, but they might have included [the current applicants]. I am quite certain that I did not talk to anybody apart from John Hyde Page about giving evidence in further proceedings in Australia.

[10] I do not recall specifically telling Mr Hyde Page in 2013 that I refused to come to Australia to give evidence in the absence of a subpoena, but I did say (as I had on previous occasions) words to the following effect:

I am reluctant to give evidence about my time as a director of the Hua Wang Bank but if you issue me with a subpoena to give evidence then I will do so.

[11] The main reason I wanted to be issued with a subpoena was to be able to demonstrate to my employer that I would be absent from work for a legitimate reason.

[12] On or about 24 April 2014 I received a phone call from John Hyde Page. We discussed a few issues and then words to the following effect were said:

John: I wanted to ask you about some other Hua Wang Bank litigation. It isn't a court proceeding it's in a tribunal.

John: Well, no, it's in the tribunal so we can't issue you with a subpoena. I was hoping you could make a witness statement about how you are not prepared to come to Australia.

Bede: Well I'm not sure about that. It depends on when it is and I would expect to be re-imbursed for my out of pocket travel costs. I also need to be satisfied that I'm going there for a bona fide reason for my attendance, as I have to take leave from my employment so some evidence to that effect is helpful. This isn't something I enjoy doing.

[13] We talked for a bit longer about my general attitude to travelling to Australia for the purpose of giving evidence. I said the following about giving evidence in Australia:

There are some days when I just won't be able to come, due to other commitments, but if they can be accommodated, and if I'm reimbursed for my travel costs, then I am prepared to give evidence.

[14] John Hyde Page said words to the following effect:

Every other time you have given evidence you said we had to issue you with a subpoena.

[15] I replied: "I don't think that is right. I wasn't issued with a subpoena in Fitzroy Services."

[16] John Hyde Page replied: "But you were. I'll send it to you."

[17] I said: "Well maybe that's right, but if there's a suitable date then I'm willing to come and give evidence even if you don't issue me with a subpoena."

[18] We discussed a particular matter in which John Hyde Page wanted me to give evidence, in which [the current applicants] were the litigants, and Mr Hyde Page said he would like me to make a witness statement. ...

...

1. Ms Damyan has had the carriage of these applications since their commencement.
2. Her affidavit traces the history of the applications in the Tribunal from their lodgement on 12 April 2013. It notes that:
   • on 12 June 2013 the Tribunal directed the applicants to file their evidence by 26 July 2013;
   • on 28 July 2013 the applicants asked that the due date for the filing of their evidence be extended to 26 August 2013 - a request to which the Commissioner consented;
   • on 29 July 2013 the Tribunal granted the extension;
   • on 1 September 2013 the applicants filed their witness statements, together with a Statement of Facts, Issues and Contentions;
   • on 31 October 2013 the solicitors for the Commissioner wrote to the applicants asking whether all their evidence was complete;
   • no response was received to that letter;
   • on 19 March 2014 the applicants served on the Commissioner additional statements of both applicants, an accountant and a lawyer;
   • those additional statements were allowed to be filed with the Tribunal[2].
3. The affidavit also gives details of the 20 separate interlocutory and final decisions of the Federal Court, both at first instance and on appeal to a Full Court, relating to litigation between Hua Wang Bank and the Commissioner, which show that Mr Hyde Page has appeared for the bank on each occasion. He also appeared for the taxpayer in Fitzroy Services Pty Ltd v Commissioner of Taxation [2013] FCA 471, a case in which Mr Carran did give evidence for the taxpayer.
4. Ms Damyan gives evidence of her understanding that, in the course of the Hua Wang Bank litigation, the bank has strenuously resisted the Commissioner's attempted reliance on documents tending to show the ultimate beneficial ownership of shareholders in the bank. That resistance has extended to seeking, and obtaining, from the Grand Court of the Cayman Islands, orders revoking the consent previously given by the Cayman Islands Tax Information Authority (CITIA) to the Commissioner allowing him to divulge, in court proceedings in Australia, the contents of documents previously provided by CITIA under an Exchange of Information provision with the Commissioner.
5. Ms Damyan estimates that if the proceedings are re-opened a further two days of hearing time will be required, for cross-examination of Mr Carran, further cross-examination of the applicants, and further oral submissions. She also notes that the amount of preparation time necessary for a resumed hearing, additional to the hearing time itself, is difficult to estimate.
6. She refers to the considerable body of material that was tendered in the Hua Wang Bank proceedings in the Federal Court[3], and says that she would want to examine those materials "to see if there are any which may be relevant in this case or which should be put to Mr Carran". She notes that the Hua Wang Bank Part IVC proceedings were heard at the same time as the tax appeals of four other entities and says:

At this stage I am unaware whether it would be possible to only examine a subset of all the documents that were tendered in evidence or whether I would need to look at all the evidence in all 5 tax appeals for documents which may be relevant to Mr Carran and HWBB[4]. However I am aware, from my discussions with Emma Whan, a solicitor in the AGS who had the carriage of the HWBB Part IVC tax appeal, that:

• the total number of folders of documents that went into evidence in all 5 tax appeals was 30. Of these 16 folders were in the Commissioner's Tender Bundle and 14 folders were filed by the applicants. Of this approximately 10 folders may relate to HWBB;
• in the course of the HWBB Part IVC tax appeal the Commissioner served Notices to Produce on HWBB and in answer to that HWBB produced 6 folders of documents; and
• in the course of the HWBB Part IVC tax appeal the Commissioner served 8 subpoenas relating to HWBB and approximately 2 folders were produced.

Assuming that there are documents which are relevant to this matter and which were produced to the Federal Court by HWBB or a third party but not put into evidence I would need to instruct counsel in this matter to make an application to the Federal Court to be allowed to use those documents in these proceedings.

1. Mr Herman is a lawyer with Henry Davis York, the solicitors for Hua Wang Bank. He has been involved, since August 2012, in the Hua Wang Bank Part IVC proceedings in the Federal Court, NSD653/2011. In his affidavit he confirms Ms Damyan's evidence that those proceedings "travelled together" with related proceedings involving a number of other clients of his firm.
2. Mr Herman's affidavit evidently seeks to contradict, or at least diminish the significance of, Ms Damyan's evidence concerning the extent to which she would need to examine documents relating to the Hua Wang Bank proceedings in the Federal Court. He estimates that the tender bundles produced by each of the applicants and the Commissioner in the Federal Court "shared 90% of the same documents", thus, apparently, almost halving the volume of the material Ms Damyan would now have to examine.
3. He also says that, from his examination of the relevant transcripts, Mr Carran's examination in chief, cross-examination and re-examination had taken less than two hours in the Hua Wang Bank Part IVC proceeding, and an hour and a half in the Fitzroy Services proceeding.

1. The additional issue the applicants wish to raise in support of their application to re-open proceedings concerns an alleged inconsistency between the way the Commissioner has treated them and the way he has treated other taxpayers in apparently similar circumstances.
2. Specifically, the applicants have been informed by their tax agent that one of the agent's other clients had been assessed by the Commissioner on an entirely different basis to the one applied by the Commissioner in their case. Mr Hyde Page described the position as follows[5]:

Since decision was reserved it has come to the applicants' attention that while on the one hand the applicants in these proceedings have been assessed on the basis that their deposit with the Hua Wang Bank was a sham other taxpayers have, in fact, had assessments raised against them on the explicit basis that these are real deposits and that interest that accrues on them is assessable. That is something that came to my attention after judgment was reserved, and we have invited the respondent to reconsider their submission about sham deposits in light of that. If the submission is not withdrawn I would seek leave to tender the reasons for decision and assessments that show that the respondent is effectively approbating and reprobating in respect of this question of sham deposits.

1. The applicants now seek to tender a Tax Office position paper and a notice of amended assessment, both of them relating to that other taxpayer.

THE APPLICANTS' SUBMISSIONS IN SUPPORT OF THE APPLICATION TO RE-OPEN

1. There are two broad submissions made on behalf of the applicants.
2. The first is that the principles that apply in relation to re-opening administrative proceedings are different from those that apply in the context of curial decision-making. The applicants submit that the Tribunal, as an administrative decision-maker, is under an unqualified obligation to take into account any relevant material that is provided to the Tribunal before it makes its final decision.
3. If that first submission is unsuccessful, then the applicants' alternative submission is that, as a matter of discretion, and by reference to the principles applicable to curial decision-making, the Tribunal should grant leave to allow additional evidence to be introduced.

1. The submission that the Tribunal is under an unqualified obligation to receive any relevant material sought to be presented before the making of a final decision is based on decisions of the Federal Court in Boucher v Australian Securities Commission [1996] FCA 1523 (Northrop J, affirmed by the Full Court [1996] FCA 1915) and X v Minister for Immigration & Multicultural Affairs [2002] FCAFC 3.
2. In relation to Boucher's case the applicants rely on the following comment of Northrop J, at [24]:

Many statutes confer rights on a person under which a claimant makes application for the grant of an entitlement and the relevant authority considers the material and makes a decision to refuse or grant the application. In some cases, the legislation permits a review of the decision to intermediatory groups and eventually the Administrative Appeals Tribunal. Many authorities show that the Administrative Appeals Tribunal in making the review, is exercising the powers of the original decision-maker and in fact is acting as if it were the original decision-maker. The fact that before the Tribunal the applicant and the original decision-maker are represented does not change the position. Terminology used in relation to court procedures can only obscure the true nature of the hearing before the Tribunal. (emphasis added by the applicants)

1. In relation to X's case, the applicants' submission is as follows:

In X v Minister for Immigration & Multicultural Affairs [2002] FCAFC 3 the Full Federal Court stated it was an appellable error for a Tribunal (in that case the Refugee Review Tribunal) to refuse to receive evidence after conclusion of the oral hearing but prior to the final decision in the matter. Gray J (with whom Moore J agreed at [51]) said the following, per FCAFC 3 at [15] and [18]:

It is normally the case that an administrative decision-maker is obliged to make the decision on the basis of material current at the date when the decision is made. That is to say, material received right up to the time when the decision has been made must be taken into account.

It cannot be supposed that the Tribunal is only obliged to receive material after completion of its oral hearing when that material concerns events that have happened after that time. There may well be material that an applicant has not thought it worthwhile offering to the Tribunal before the hearing, but which becomes crucial when it is apparent during the hearing that the Tribunal is sceptical about some aspect of the applicant's case. For an applicant to be deprived of an opportunity to establish his or her case, or his or her credibility, in such circumstances would require the expression of a clear legislative intention. In the absence of such an intention, the Tribunal has no power to refuse to consider material submitted after the oral hearing.

It is submitted that there is no basis for distinguishing the position of the Refugee Review Tribunal from the Administrative Appeals Tribunal.

1. The applicants note that there does not appear to be any binding authority that the principles that deal with re-opening evidence in a curial context are applicable to the Tribunal. Nevertheless, they submit that those principles may provide guidance to the Tribunal in the event that the question is one of discretion. The principles are said to be as follows:
   • The overriding principle is whether, taken as a whole, the justice of the case favours the grant of leave to re-open;
   • As a subset of this overriding consideration, there are four classes of case in which a court might grant leave to re-open. The submissions cite the decision of Kenny J in Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 ("Bradshaw") where at [24] her Honour said:

_The authorities indicate that, broadly speaking, there are four recognised classes of case in which a court may grant leave to re-open, although these classes overlap and are not exhaustive. These four classes are (1) fresh evidence (_Hughes v Hill [1937] SAStRp 43; [1937] SASR 285 at 287; Smith v New South Wales Bar Association [No 2] _[1992] HCA 36; (1992) 108 ALR 55 at 61-2); (2) inadvertent error (_Brown v Petranker (1991) 22 NSWLR 717 at 728 (application to recall a witness); Murray v Figge (1974) 4 ALR 612 at 614 (application to tender answers to interrogatories); Henning v Lynch _[1974] 2 NSWLR 254 at 259 (application to re-open); (3) mistaken apprehension of the facts (_Urban Transport Authority of NSW v NWEISER _(1992) 28 NSWLR 471 ("UTA") at 478; and (4) mistaken apprehension of the law (_UTA at 478). In every case the overriding principle to be applied is whether the interests of justice are better served by allowing or rejecting the application for leave to re-open: see UTA at 478; also The Silver Fox Company Pty Ltd as Trustee for the Baker Family Trust v Lenard's Pty Ltd (No 2) [2004] FCA 1310 ("Silver Fox") at [22] and [25].

1. The applicants submit that it is in the interests of justice for the Tribunal to receive the new evidence because the evidence would assist the Tribunal in arriving at a correct decision on questions of fact, and no irremediable prejudice to the Commissioner would be caused. They also say that, in relation to the four categories of case described above, their case is within category (1), fresh evidence, or (2), inadvertent error.

1. The Commissioner's submissions are helpfully summarised in Part A of his written submissions, as follows:

[1] The burden of the Applicants' submissions is that the Tribunal should consider any relevant material that comes to its attention before it hands down its decision. So understood the Applicants are advocating a general rule applicable to Tribunal proceedings that the Tribunal should reopen any hearing and receive further evidence, and that the Tribunal's discretion, if any, is unfettered, and must be exercised in favour of the reception of further evidence.

[2] The correct (sic) is that Tribunal proceedings involving a review of the Commissioner's decision on objection are delineated as to the issues by reference to the objection, and take a form which is analogous to court proceedings, having regard to the onus of proof under s 14ZZK(b)(i) of the Taxation Administration Act ("TAA").

[3] The Tribunal does not have an unfettered discretion to accept further evidence prior to handing down its decision, but having regard to the subject matter, scope and purpose of the Administrative Appeals Tribunal Act and the nature of the proceedings before it, the rules of procedure established by various court decisions are relevant to the exercise of discretion.

[4] It would be wrong for the Tribunal to fail to have regard to relevant discretionary criteria established by authority and to exercise its discretion in favour of the receipt of the further evidence simply on the basis that it is brought to the Tribunal's attention prior to the handing down of the decision.

[5] The Applicant[s] have failed to establish a basis for the exercise of discretion in their favour to permit the proceedings to be reopened. The evidence now relied upon is not "fresh" evidence, it was deliberately withheld as a conscious forensic decision and none of the other factors regarded by the courts is relevant to the exercise of discretion have been established.

IS THE TRIBUNAL UNDER AN UNQUALIFIED OBLIGATION TO RE-OPEN THE PROCEEDINGS?

1. I agree with the Commissioner that the Tribunal is not under an unqualified obligation to re-open proceedings whenever a party asks it to do so. The applicants' reliance on the Boucher and X cases is in my view misplaced. The statements relied on from those cases need to be seen in the broader context in which they were made. That context can only be demonstrated by a detailed examination of both cases.
2. In Boucher's case the Australian Securities Commission was considering making a banning order against the appellant, who was a stockbroker. An order of that kind could not be made unless the Commission gave the applicant the opportunity to appear at a private hearing before the Commission and to make submissions and give evidence in relation to the matter alleged against him.
3. A delegate of the Commission conducted the required hearing, at which the appellant was legally represented. An officer of the Commission, who was a lawyer, appeared to assist the delegate. After the hearing but before the Commission's delegate had made his decision, the legal officer assisting at the hearing notified the solicitor for the appellant that he would be making an application to the delegate to allow "fresh evidence" to be provided to the delegate. The delegate decided to re-open the hearing for the purpose of receiving the further evidence. The appellant appealed against that decision.
4. At first instance Northrop J said that the delegate was correct to receive the further evidence, and held the rules that ordinarily apply to applications to re-open in a curial context do not apply in an administrative context.
5. In dismissing the appeal from that judgment, the Full Court said:

[18] ... There is a fundamental difference between the exercise of an administrative function, such as the activity in which the Commission engages when considering whether to make a banning order under s 829 the Corporations Law, and the exercise of a judicial function: see Precision Data Holdings Limited v Wills (1991) 173 CLR 167 at 188-190. A court determines an issue between two parties on the evidence each chooses to put before the court: any power a court may have in both civil and criminal proceedings to call evidence of its own motion is strictly limited. See Obacelo Pty Ltd v Taveraft Pty Ltd (1986) 10 FCR 518 and R v Apostilides [1984] HCA 38; (1984) 154 CLR 563. ... An administrative agency is, in contrast, "under a duty to arrive at the correct or preferable decision in the case before it according to the material before it. If the material is inadequate (the administrative decision-maker) may request or itself compel the production of further material": Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408 at 425. ...

[19] But the fact that the delegate was exercising an administrative rather than a judicial function is not, of itself, determinative of the question for decision by the learned primary judge. The critical issue must be whether the delegate, by ruling that he would receive the further evidence after he had adjourned the hearing to consider his decision, failed to discharge his statutory obligation to comply with the rules of natural justice.

[20] The authorities show that an obligation resting on an administrative decision-maker to observe the rules of natural justice does not require the inflexible application of a fixed body of rules; what it requires is fairness in all the circumstances of the particular case, which include the nature of the jurisdiction or power exercised and the statutory provisions governing its exercise: National Companies and Securities Commission v The News Corporation Ltd [1984] HCA 29; (1984) 156 CLR 296, per Gibbs CJ at 312 and see also per Mason, Wilson and Dawson JJ at 320 and Brennan J at 326; Salemi v Mackellar (No 2) [1977] HCA 26; (1977) 137 CLR 396 at 445 and 451; Kioa v West [1985] HCA 81; (1995) 159 CLR 550 at 583-585, 601, 613-614, 622. In Kioa v West_, Mason J, at 584-585, explained in more detail what an administrative decision-maker must do to comply with an obligation to observe the rules of natural justice:_

Where the decision in question is one for which provision is made by statute, the application and content of the doctrine of natural justice or the duty to act fairly depends to a large extent on the construction of the statute ... What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject-matter, and the rules under which the decision-maker is acting ...

In this respect the expression 'procedural fairness' more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, ie, in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations ... (my emphasis)

The way in which the appellant's case was presented at first instance may well have diverted attention from the critical inquiry, viz, whether in deciding to re-open the hearing, the Commission's delegate acted in a way which was fair to the appellant, in all the circumstances of the case. ... (my emphasis)

1. It is clear that Boucher is a case about fairness. It does not establish the principle that administrative decision-makers are under an unqualified obligation to take into account any relevant material that is provided to the Tribunal before it makes its final decision. No statement to that effect, express or implied, is to be found in the Full Court judgment.
2. In X's case the appellant, a citizen of Burma, had applied for a protection visa. The Minister's delegate had refused the application and the matter came before the Refugee Review Tribunal for review.
3. The Tribunal conducted an oral hearing at which the appellant gave evidence and made submissions. After the oral hearing the Tribunal wrote to the appellant, saying that it had information that appeared to conflict with some of the claims he had made. The Tribunal invited the appellant to comment on the information. He provided a written explanation, together with his original diary which he said supported some of his claims. The diary was written in a language other than English, and no translation was provided.
4. About a month later the Tribunal published its decision, upholding the decision to refuse a protection visa. It did not accept some of the appellant's claims. It did not accept that he was a student during the 1988 uprising in Burma and found that he was not a "leader" during the 1988 demonstrations. It accepted that he participated at a low level but found that he was not an organiser. The Tribunal said:

The Tribunal finds that the applicant had no difficulties with the authorities in Burma prior to 1996. Based on the country information cited above the Tribunal finds that there is no real chance that the applicant will be persecuted if he returns to Burma for his involvement in the 1988 protests.

1. The Tribunal also did not accept that the appellant was a member of the National League for Democracy (NLD).
2. The Tribunal's reasons referred to the diary, as follows:

The Tribunal refers to the diary that the applicant recently forwarded to the Tribunal. As it is not translated the Tribunal cannot take its contents into account however, even if it was translated, it appears to only cover a period of some months in 1988 and the Tribunal has already found that the applicant would not be at risk for his involvement in political activities in 1988. It does not support a claim of continued involvement in the NLD after 1988.

1. At first instance in the Federal Court ([2001] FCA 253) Lee J held that the Tribunal was obliged to take into account the evidence that the appellant had submitted in the form of the diary, but also held (on the basis of translations of some of the diary passages that were available to his Honour) that the passages did not point to the existence of a fact inconsistent with the findings of fact made by the Tribunal.
2. In the Full Court, Gray J said:

[15] It is normally the case that an administrative decision-maker is obliged to make the decision on the basis of material current at the date when the decision is made. That is to say, material received right up to the time when the decision has been made must be taken into account. In Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 30, Gibbs CJ said:

The duty of the Minister is to consider the matters mentioned in s. 50(3) in the light of the actual facts as disclosed by the material in his possession at the time when he considers whether or not he is satisfied for the purposes of s. 11(1)(b), and not on a false assumption (whether the falsity is due to a change of circumstances or to an error on the part of the Commissioner) concerning the matters mentioned in s. 50(3).

[16] At 44, Mason J (with whose reasons Gibbs CJ and Dawson J expressed agreement) said:

The second question, which lies at the heart of this appeal, is whether the Minister is also bound to take into account submissions made to him which correct, update or elucidate the Commissioner's comments on detriment. Once it is accepted that the subject-matter, scope and purpose of the Act indicate that the detriment that may be occasioned by a proposed land grant is a factor vital to the exercise of the Minister's discretion, it is but a short and logical step to conclude that a consideration of that factor must be based on the most recent and accurate information that the Minister has at hand. Considerable time may elapse between completion of the Commissioner's report and the date at which the Minister makes his decision; in the present case it was well over one and a half years. In that time there may be such a change of circumstances that the Commissioner's comments may no longer prove to be an accurate guide, there may be uncertainties or ambiguities in his comments that deserve clarification, or, as in the present case, even though there may have been no change of circumstances, interested parties may have become aware that the Commissioner's report omitted material matters on the subject of detriment. It would be a strange result indeed to hold that the Minister is entitled to ignore material of which he has actual or constructive knowledge and which may have a direct bearing on the justice of making the land grant, and to proceed instead on the basis of material that may be incomplete, inaccurate or misleading. In one sense this conclusion may be seen as an application of the general principle that an administrative decision-maker is required to make his decision on the basis of material available to him at the time the decision is made. But that principle is itself a reflection of the fact that there may be found in the subject-matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision-maker.

[17] There is no reason apparent from the provisions of the Migration Act why the Tribunal should be regarded as an exception to the principle that an administrative decision-maker must take account of material received right up to the time the decision is made. Indeed, there is every reason to suppose that the scheme for review of decisions arising under the Migration Act requires consideration by the Tribunal of up-to-date material. ... (my emphasis)

1. It is true, as the applicants submit, that Moore J agreed with Gray J in the Full Court. But this is the way Moore J expressed himself, at [48]:

... I agree with the orders his Honour proposes and generally with his reasons though I consider the appeal can be resolved on a slightly narrower footing. ...

[50] The nature of any obligation on an administrative decision-maker to consider material provided by a person with an interest in the decision, is to be ascertained having regard to the statutory context in which the power to decide is conferred. The subject matter, scope and purpose of a statute may give rise to an implication that the decision be based on the most current material available to the decision maker: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 45 per Mason J (Gibbs CJ and the Dawson J agreeing). The subject matter, scope and purpose of a statute may also give rise to an implication that the decision maker approach material (provided by an interested person) with some other characteristic (apart from currency) in a particular way.

[51] In the present case, the Tribunal was exercising a power to review a decision concerning an application by an asylum seeker for a protection visa. Plainly the Tribunal, in exercising that power, would have to deal with applicants whose first language was not English and who may not speak English at all. Equally, the Tribunal would have to deal with documents relied on by applicants which were also not in English. The first matter is addressed by s 427(7), which enables the Tribunal to direct that a communication with a person who is not proficient in English be through an interpreter. ... Subsection 427(7) demonstrates, for present purposes, that the legislature has established a regime for the review of unsuccessful applications for protection visas which recognises that people involved in the review, including applicants, might not speak English. One of the apparent purposes of s 427(7) is to enable applicants to fairly put their case for asylum, by communicating through an interpreter. In my opinion, this would indicate that the Tribunal, in exercising the conceded power to consider written material provided by an applicant after the oral hearing, could not decline to consider its contents simply because it was not in English and no version translated into English was provided by the applicant when the written material was furnished. In my opinion the Tribunal could not decline to consider the contents without informing the applicant the document would not be considered in the absence of an English translation.

...

[53] The point addressed by the Full Court in Cabal v Minister for Immigration & Multicultural Affairs [2001] FCA 546 was whether the Tribunal was under a general obligation to obtain for itself a translation of documents furnished by an applicant. The issue in this appeal is slightly different. I do not suggest that the Tribunal was obliged to obtain a translation of the diary itself nor that it was obliged to defer deciding the appellant's application until the appellant had provided a translation. What it did not do was inform the appellant that it would not take into account the contents of the diary because a translation had not been furnished. Generally, an applicant would be likely to know what a document relied on said and its significance. Both matters could be explained by the applicant if comment was invited before the document was effectively rejected. The Tribunal is not bound by any "best evidence" rule and can rely on secondary evidence, as it is described in curial proceedings, of the contents of documents: see s 420(2). Moreover, it is open to the Tribunal to request (as it routinely does) that an applicant provide translations of documents on which he or she relies particularly if the applicant says the document is significant or the Tribunal believes it may be. If a translated document provided by an applicant bears upon the claim of the applicant and the Tribunal is to have regard to it, the Tribunal can either accept the translation or independently seek to verify its accuracy. It is improbable that the statutory scheme would require the Tribunal ordinarily to obtain a translation if none was provided, after invitation, by the applicant: see Cabal v Minister for Immigration& Multicultural Affairs (supra). However, equally, it is unlikely that the statutory scheme authorised the Tribunal to disregard the contents of a document relied on by an applicant simply because it was not in English, when the applicant was not put on notice that the contents would be disregarded without a translation being provided, before the decision was made to reject the application for a protection visa. (my emphasis)

1. O'Loughlin J, dissenting, noted that the information before the Tribunal indicated that the appellant had ready access to people who were fluent in English and who were able to assist him. He offered no explanation for not submitting an English translation of his diary. In those circumstances, his Honour found it "difficult to criticise the conduct of the Tribunal in refusing to have regard to the contents of the diary" (at [44]).
2. X's case, like Boucher, is a case emphasising the requirement of administrative decision-makers to afford procedural fairness to those whose interests may be affected by their decisions. Neither case establishes or reinforces an inflexible rule of the kind that the applicants urge me to accept.
3. Even if it is correct to say that there is a general rule that material must be accepted at any time prior to a final decision, a rule of that nature does not have universal application. Indeed, it does not even apply universally in the context of original administrative decision-making, let alone cases where (as in the Refugee Review Tribunal and the Administrative Appeals Tribunal, for example) the administrative decision-maker is undertaking a review function. Boucher's case itself confirms that the general rule does not apply in respect of the original decision-making function of the (then) Australian Securities Commission; so much is clear from the Full Court's repeated references to the Commission's obligation to comply with the rules of natural justice and the requirement that the Commission act fairly towards the applicant.
4. Nor does X's case support the applicants' submission that any such general rule applies in the Refugee Review Tribunal. It is therefore unnecessary to consider the further submission that "there is no basis for distinguishing the position of the Refugee Review Tribunal from the Administrative Appeals Tribunal". However, had it been necessary to do so, I would have come to the view that there is a clear and relevant distinction between the two - if not in respect of the entirety of the AAT's jurisdiction, then certainly (at least) in its taxation jurisdiction, as will become clear later in these reasons.
5. My conclusion that the Tribunal is not under an unqualified obligation to receive any relevant material sought to be presented before the making of a final decision, is consistent with earlier decisions of the Tribunal. Re Kowalski and Military Rehabilitation and Compensation Commission [2007] AATA 1988 is such a case. The applicants actually rely, in support of their unqualified obligation submission, on the observations of the Tribunal in Kowalski, at [26]:

If before it makes its decision the AAT becomes aware of material which might impact on what might be the correct or preferable decision, it should ordinarily have regard to that material unless it seems to me there is good reason demonstrated not to.

The AAT, of course, is not sitting on appeal but is sitting on a review of a decision of an administrative decision maker. However, we think that for the orderly disposition of business in the AAT, no party should be able to make further submissions or attempt to adduce further evidence after the AAT has completed its hearing without first obtaining the leave of the AAT. This case is an illustration of the AAT receiving a barrage of submissions and references to evidence, both already tendered and sought to be tendered. The submissions and the references to the evidence should not have been made to the AAT without the AAT's permission.

1. In other words, further material will not always be accepted after a hearing, but it may be accepted as a matter of discretion. The party seeking to rely on further material should first seek leave, as the applicants have done in this case. And then the suggested approach of the Tribunal, if leave is granted, is that it should "ordinarily" have regard to that material, in the absence of a good reason not to. The use of the word "ordinarily" introduces a further qualification beyond the requirement that leave be granted, which confirms that the Tribunal retains a discretion to reject, or disregard, the material on reasonable grounds.
2. Moreover, it should be noted that Kowalski was a case involving the Safety, Rehabilitation and Compensation Act 1988. That is a statute which, like many others under which the Tribunal exercises its powers of review, has no onus of proof provisions. On the other hand, in review proceedings in the Tribunal under Part IVC of the Taxation Administration Act 1953 (TAA), there is a specific onus of proof provision, in s 14ZZK of the TAA. That distinction between the ordinary run of cases and those under Part IVC needs to be borne in mind when considering observations such as those of Brennan J in Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408. Speaking of s 120 of the Veterans' Entitlements Act 1986, his Honour said at 424-5:

This section is not concerned with an onus of proof. Sub-section (6) says so expressly. It is concerned with a standard of satisfaction to which the administrative decision-maker must attain in finding the relevant facts, and it directs the decision-maker to act on the material before the Commission, the Board or the A.A.T., as the case may be. Proceedings before the A.A.T. may sometimes appear to be adversarial when the Commission chooses to appear to defend its decision or to test a claimant's case but in substance the review is inquisitorial. Each of the Commission, the Board and the A.A.T. is an administrative decision-maker, under a duty to arrive at the correct or preferable decision in the case before it according to the material before it. If the material is inadequate, the Commission, the Board or the A.A.T. may request or itself compel the production of further material. The notion of onus of proof, which plays so important a part in fact-finding in adversarial proceedings before judicial tribunals, has no part to play in these administrative proceedings. Nor does s.120 create any presumption which has to be dispelled by the material before the decision-maker.

1. In Re Confidential and Commissioner of Taxation [2013] AATA 382, Senior Member Fice focused on the onus of proof provision in s 14ZZK in explaining, correctly in my view, why the general observations of Brennan J in Bushell do not apply in the context of Part IVC proceedings. This is a second Tribunal case consistent with my rejection of the applicants' unqualified obligation submission.

1. The decision whether to re-open proceedings depends on the exercise of the Tribunal's discretion. The ultimate question is whether, as a matter of fairness, the applicants' request should be granted. An alternative way of putting the question is, as the applicants submitted, "whether, taken as a whole, the justice of the case favours the grant of leave".
2. What is "fair" or "just" in a given case is to be determined by reference to the particular circumstances of the case. In that enquiry the subject matter, scope and purpose of the statutory provisions under which the decision-making power is conferred have a role to play: X v Minister for Immigration & Multicultural Affairs [2002] FCAFC 3, per Moore J at [50], quoted in [50] above.
3. As already mentioned, the two factors on which the applicants mainly rely, at least as far as the First Development is concerned, are that there is "fresh evidence", and that there has been an "inadvertent error" in initially believing that Mr Carran would not give evidence in the absence of a subpoena.
4. The Commissioner's written submissions deal not only with those factors, but also with the following: mistake or misapprehension of fact; mistake or misapprehension of law; the need for finality of litigation; the absence of an explanation; whether the applicants have previously made a deliberate choice not to adduce the relevant evidence; whether it would be unfair to allow re-opening; the Commissioner is entitled to know all the evidence he has to meet; and prejudice in terms of delay, and consequential costs.
5. To that list I would add, as relevant considerations, the history and development of the dispute and the history of the proceedings in the Tribunal.
6. The factors nominated by the Commissioner overlap to some extent and for that reason I will not deal with each of them discretely.

1. The Commissioner submits that the proposed evidence of Mr Carran is not "fresh" in the sense that it was unavailable or not reasonably discoverable prior to the commencement of the substantive hearing; instead, it is "old" in the sense that the evidence was available previously. The Commissioner notes that the question of the use of that evidence was first raised on 24 April 2014, two days after I reserved my decision.
2. Mr Carran's witness statement does not indicate that the question of his giving evidence in these proceedings was ever raised squarely with him before 24 April 2014. I find that he was not asked until that date. Any evidence he could give now about the Hua Wang Bank loans is evidence he could have given on any one of the dates set down for the hearing, if only he had been asked. It is not "fresh evidence". It is more accurately described as evidence that the applicants previously did not want to rely on but now do.

1. There does seem to have been an error on the part of the applicants or their legal advisers as to their understanding of Mr Carran's willingness to give evidence in these proceedings. That error, though, appears to have arisen as a result of a lack of diligence on the part of the advisers in not establishing Mr Carran's true attitude after proper, unambiguous enquiry and, if necessary, negotiation. Even if I had accepted, in favour of the applicants, that the question of Mr Carran's willingness to give evidence in these proceedings had been raised with him during 2013, the substance of his response, according to [10] of his witness statement, would have been that he was "reluctant". The further indication that he would give evidence if issued with a subpoena is nothing more or less than a statement of the law as it applied to him. I do not regard the error of not establishing the true position as "inadvertent" (which, in this context, means "unintentional").
2. Moreover, of the cases cited in Bradshaw (see [32] of these reasons), the one that appears to be most relevant is Henning v Lynch (labelled by Kenny J simply as a case of "application to re-open", to be contrasted with the alternative labels "application to recall a witness" and "application to tender answers to interrogatories", neither of which is this case). But on examination, any parallels between Henning v Lynch and this case are slim indeed.
3. Henning v Lynch came to the Supreme Court of New South Wales on appeal from the then Dubbo Court of Petty Sessions. Mr Lynch had been prosecuted for driving a car with more than the prescribed concentration of alcohol in his blood. At the conclusion of the prosecution's case the magistrate observed that the prosecution appeared not to have presented any evidence that Mr Lynch's breath test had been conducted on an approved device. The prosecutor acknowledged the point, and sought leave to recall the informant to give that evidence. The defendant objected and the magistrate refused leave for the prosecution to re-open for that purpose.
4. Jeffrey J in the Supreme Court said that the magistrate's refusal to allow the reopening was:

... sufficiently unwarranted to have caused him to commit an error in law. Justices have a discretion, after the case for the prosecution has closed, to permit the prosecutor to reopen his case for the purpose of supplying a technical defect in the evidence for the prosecution. ... The applicable principle is one which in the circumstances obtaining here strongly favours the reopening of the prosecution case: where the defendant's case has not been gone into and there is ready to be tendered some additional evidence which by accident, mistake or want of foresight has not been tendered before the prosecution case is closed, it is ... "a very fit and proper thing to allow the evidence to be given unless there is some very good reason."

1. Those circumstances are a long way from this case.

1. I agree with the Commissioner's submission that there is no evidence to support the existence of either of these factors.

1. The Commissioner notes the Tribunal's obligation under s 33(1)(b) of the Administrative Appeals Tribunal Act 1975 (AAT Act) to conduct its proceedings with as much expedition as the proper consideration of the matters permits, and the mandate in s 2A of the AAT Act that the Tribunal provide a mechanism of review that is fair, just, economical, informal and quick.
2. In focusing on the public interest in the finality of litigation, Mr McGovern, with some flourish, expanded on these notions in his oral address[6]:

Finality of litigation is another factor which is, we submit, terribly important in a context such as this; namely, that you've got a concluded hearing and decision [re]served, and this is where the criteria that inform the decision making in the Tribunal come into play. That is section 33(1)(b), the obligation to conduct the proceedings with expedition and proper consideration of the matters, the overriding obligation in section 2A. We submit that there is a dangerous notion that is lurking away in acceding to an application such as this. It's said by the cases and otherwise that it is likely to add enormously to inefficiencies, it leads to a position where there is no rigour or stringency associated with the giving of the evidence and, most emphatically, the hearing becomes simply a sort of staging post where parties then look at the way things have gone and the evidence and the boundaries for reopening the issues would be completely unconfined.

The Tribunal would be forever bedevilled by complete uncertainty as to whether evidence had been completed, and as to whether the position was likely to be turned on its head at any time between the reserving of a decision and the pronouncement of a decision. In our respectful submission that would be very problematic and very likely to lead to a great deal of disarray in relation to the tribunal, and quite to the contrary of its charter, if you like, in section [2A].

1. There is no doubt that acceding too readily to applications to re-open proceedings has the potential to disrupt what the Tribunal referred to in Kowalski as the "orderly disposition of business in the AAT". That is not to say that the orderly disposition of Tribunal business is the most important factor, merely to emphasise that it is a consideration that the Tribunal is entitled to take into account.

1. Mr Carran gives only vague evidence about any conversations he had with respect to these proceedings. No witness gives any evidence about why there was no specific, detailed discussion with him prior to 24 April 2014. I infer that Mr Carran was contacted after the hearing in an attempt to have him provide an explanation as to why he had not given evidence originally. Then, when it became apparent that there was no obstacle to his coming to Australia to give substantive evidence, it was sought to have him deal with shortcomings in the applicants' case that became evident during the hearing. This is discussed further under the following heading.

1. An affidavit of Mr Carran is already in evidence in the substantive proceedings; it is an exhibit to Exhibit A6. Exhibit A6 is the witness statement of Mr Allan Heasman, who is a director of Fitzroy Services and who gave evidence in that company's proceedings in the Federal Court (see also [8] of these reasons).
2. That affidavit of Mr Carran was directed only to the invoices in the Fitzroy Services case. He did not give evidence concerning the loan agreement between the current applicants and Hua Wang Bank.
3. In the substantive hearing in these proceedings, the applicants relied on Mr Carran's affidavit but limited to the fact that Mr Carran was a director of Hua Wang Bank, that he truly exists and that he comes from New Zealand[7].
4. As invited by the Commissioner, I infer that there was a deliberate tactical decision not to call Mr Carran, probably because it was originally thought that his evidence in relation to the circumstances of these particular applicants was not needed.
5. The Commissioner also notes that, during closing addresses on 22 April 2014, there was a discussion between counsel and me about the sham argument and the burden of proof. The discussion started as follows[8]:

DEPUTY PRESIDENT: I do have some questions for you, Mr McGovern.

MR McGOVERN: Yes.

DEPUTY PRESIDENT: Can I start with sham. Your position and Mr Hyde Page's position are completely different on the burden of proof question. Mr Hyde Page says that if I accept that the [applicants] intended that the document would operate according to its terms then I think his submission is I can't find sham. Now, your position is different from that. You say that the burden that the applicants have to discharge is to prove that there was a common intention that it would operate according to its terms.

MR McGOVERN: Yes.

DEPUTY PRESIDENT: Now, that is a fundamentally different position that you two are taking.

MR McGOVERN: We - - -

DEPUTY PRESIDENT: Now, let's say - well, I'm sorry, I shouldn't interrupt.

MR McGOVERN: No, I was about to say that if you look at the judgment of Lockhart J in the Richard Walter case at the page I referred to, his Honour allows for the fact that there can be a shift of evidentiary burden at times in the course of the case but that the ultimate burden remains as we submit and have submitted that our alternative is correct according to the Richard Walter formulation. That is very clear from 259F in Hill J. The onus is not on the Commissioner to show sham.

DEPUTY PRESIDENT: No, I accept that. I accept that, but Mr Hyde Page says that he can disprove sham by showing simply that the applicants had an intention that the document would operate according to its terms.

MR McGOVERN: Yes.

DEPUTY PRESIDENT: But your point is, well, no, that's not enough; they have to prove that there was an intention between them and the bank, that both parties had a common intention that it would operate according to its terms.

MR McGOVERN: Yes.

DEPUTY PRESIDENT: Whereas Mr Hyde Page's position is that only the [applicants] have to prove what their intention was.

MR McGOVERN: That's so, yes, and that is why he put his submission that if you are satisfied on the evidence of the [applicants] that in effect he wins, whereas we were pointing out that in an onus case on sham, to paraphrase, in the absence of the memory or the books of the taxpayer the Act isn't meant to operate in that way, so also in relation to sham, the absence of a contracting party when you are seeking to show common intention is really fatal to the case. ...

1. Mr Hyde Page did not accept Mr McGovern's formulation. Nevertheless, it is likely that the exchange alerted Mr Hyde Page to the possibility that I would accept Mr McGovern's formulation. In that event, and in the absence of evidence from the bank (through Mr Carran) so as to throw light on the intention of the other contracting party, the applications for review would not succeed. That Mr Carran was approached two days later - initially, to provide reasons as to why he had not given evidence earlier - is the natural consequence of that realisation.

The history and development of the dispute and the history of the proceedings in the Tribunal

1. The T-documents relating to the male applicant's application (Exhibit R1) indicate at T10-221 that the applicants, and entities associated with them, were notified in November 2009 that the Commissioner had finalised his "Income Tax Review" of their affairs and that he had decided to commence an audit. On 27 August 2012 the Commissioner provided a letter (T26-740) indicating that the audit had been completed. A Schedule to the finalisation letter contains details of amended assessments that the Commissioner proposed to make. A forty-eight page document entitled "Reasons for Decision" was enclosed with the finalisation letter. Issue 1 in those Reasons for Decision was identified as "Sham Loan".
2. The document at T25 indicates that the Commissioner had provided a Position Paper to the applicants four months earlier, on 27 April 2012, although the Position Paper itself is not included in the T-documents. That document at T25 makes it plain that the Commissioner's allegation of sham was raised with the applicants no later than the date of the Position Paper. That is now over two years ago.
3. In due course the Commissioner made the amended assessments, the applicants objected against them and the Commissioner disallowed the objections. The applicants lodged their applications for review with the Tribunal on 12 April 2013. Ms Damyan's affidavit shows that, despite a Tribunal direction requiring the applicants to file their evidence by July 2013 (later extended to 26 August 2013), they were still filing witness statements in March 2014, two weeks before the commencement of the hearing. Now they seek leave to file more, after the hearing has been concluded.

The subject matter, scope and purpose of the statutory provisions

1. The statutory context in which the applicants have made their applications to the Tribunal is a combination of Part IVC of the TAA and the AAT Act.
2. I have already mentioned the onus of proof provisions in s 14ZZK. Section 14ZZK also provides, in paragraph (a), that on an application to the Tribunal under Part IVC, the applicant is limited to the grounds stated in the taxation objection, unless the Tribunal orders otherwise. Those are two restrictions that are imposed on applicants in the Tribunal's taxation jurisdiction that are not generally imposed on other applicants.
3. It is not hard to see why. Taxpayers are presumed to know their own affairs better than anyone else does. In particular, they know them better than the Commissioner does. The Commissioner generally only knows what the taxpayer tells him. And so, if the taxpayer wants to assert certain facts so as to establish a claimed taxation outcome, it is understandable that the law requires the taxpayer to prove those facts. Hand in hand with that requirement is the further requirement that, in lodging an objection against an assessment or some other kind of reviewable decision of the Commissioner, the taxpayer must state in the notice of objection, "fully and in detail", the grounds upon which the taxpayer relies.
4. And so, the scope and purpose of the combined provisions of Part IVC and the AAT Act are not difficult to identify. They are to provide a mechanism for the independent review of the Commissioner's reviewable decisions, but within the boundaries constructed by Part IVC itself, including in particular s 14ZZK, and within the framework provided by the AAT Act.
5. There are some provisions within the framework of the AAT Act that are particularly relevant. I have already referred to s 33(1)(b), requiring proceedings to be conducted with as much expedition as possible, and to s 2A, requiring the Tribunal to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick. The Tribunal has the power to make directions as to the procedure to be followed in a particular matter (s 33), and it has the power to dismiss applications under s 42A(5) if an applicant fails within a reasonable time to comply with a direction. Finally, s 39 requires the Tribunal to ensure that every party to a proceeding is given a reasonable opportunity to present his or her case.

SHOULD THE TRIBUNAL RE-OPEN THE PROCEEDINGS AS A MATTER OF DISCRETION?

1. I am not persuaded that these proceedings should be re-opened. Having regard to the way the proceedings were conducted, both prior to and during the hearing, I do not consider that the considerations of fairness and justice favour the grant of leave to re-open.
2. Fairness and justice are concepts that need to be considered not only from the perspective of the party seeking leave to re-open, but also from the perspective of other parties involved in the proceedings.
3. I accept the submission of the Commissioner that Mr Carran's evidence cannot be tested adequately in the absence of the production of documents by Hua Wang Bank in relation to transactions allegedly involving the applicants, and there is no evidence that the bank's resistance to the production of documents, which has already been demonstrated in the Part IVC and recovery proceedings in the Federal Court (see the earlier reference to this in the affidavit of Ms Damyan, in [17] of these reasons), will not be repeated here. (It needs to be recalled that Mr Carran has not been involved in the bank for over 11 years, rendering it extremely unlikely that he would be in a position to produce any documents himself.)
4. I also accept the submission of the Commissioner with respect to the public interest in the finality of litigation. To disturb the current position, with the decision reserved and proper and orderly consideration of the material under way, requires sound justification. There is none. In particular, the factors relied on by the applicants in support of the application to re-open ("fresh evidence" and "inadvertent error") are not made out. Instead, the factors that I have considered point overwhelmingly against the applicants' application.
5. Finally, in circumstances where the applicants have been, ever since their application for review was lodged in the Tribunal, represented by practitioners who are not only competent but also experienced in the workings of the Tribunal, and where the pre-hearing processes have been entirely orthodox and in accordance with the Tribunal's General Practice Direction, and where considerable indulgence was extended to the applicants by the acceptance of witness statements seven months late and only two weeks before the hearing, I am satisfied that the applicants have been given a reasonable opportunity to present their case, in accordance with s 39 of the AAT Act. I do not propose to remedy any failure by them to take best advantage of that opportunity by granting them leave to re-open their case.

1. So far I have not dealt specifically with the Second Development. That is because the Second Development provides no sound reason for re-opening these proceedings.
2. First, it must be emphasised that the Tribunal's task in reviewing a reviewable decision on the merits is to find the relevant facts, identify the relevant law, apply the law to the facts and make the "correct or preferable" decision in the circumstances. In the current proceedings the decision of the Tribunal will flow from an answer to the question as to whether the assessments are excessive. An argument to the effect that the Commissioner has dealt with other taxpayers, in allegedly similar circumstances, in a way that is different from the way he has dealt with these particular taxpayers has no relevance to the Tribunal's task as I have just outlined it. The argument is a distraction. To allow the argument to be raised would require, apart from anything else, a detailed analysis of whether the other taxpayers' circumstances are indeed similar to the circumstances of the applicants in this case. That analysis would not help the Tribunal to answer the question as to whether the assessments in the current proceedings are excessive. There is no purpose to be served, in the current review proceedings, by undertaking an analysis of other taxpayers' circumstances: see also Re Radge and Commissioner of Taxation [2007] AATA 1317; (2007) 95 ALD 711.
3. Secondly, in any event, the applicants have not sought leave under s 14ZZK(a) of the TAA to expand their grounds of objection to incorporate this additional ground. Since there is no merit in the argument, if leave were sought I would refuse it.

I certify that the preceding 100 (one hundred) paragraphs are a true copy of the reasons for the decision herein of Deputy President S E Frost

........................................................................

[1] Paragraph [5] of his witness statement

[2] The Tribunal file reveals that the Commissioner did not oppose the late filing

[3] Those proceedings concern both an appeal by the bank under Part IVC of the Taxation Administration Act 1953, and proceedings initiated by the Commissioner for the recovery of tax from the bank

[4] Ms Damyan's affidavit refers to Hua Wang Bank Berhad as "HWBB"

[8] Transcript, 360 and following; I have made minor corrections