Grounds 1 and 2 (burden of proof)
88 It is convenient to consider these grounds together, consistently with the approach taken in Mr Buzadzic's submissions. Grounds 1 and 2 are as follows:
1. On the evidence before the Tribunal and the findings of fact made by the Tribunal (including but not limited to the facts and findings in schedule A [to the notice of appeal] but save and except facts challenged below), the Tribunal erred in law in finding that the Applicant failed to discharge the burden cast upon him by section 14ZZK(b)(i) of the Taxation Administration Act 1953 that the assessments were excessive. The Tribunal was obliged in law to conclude that the Applicant has discharged the burden of proof cast upon him by section 14ZZK(b)(i) of the Taxation Administration Act 1953.
2. The Tribunal adopted a process of reasoning that was so illogical, irrational or lacking a basis in findings or inferences of fact supported on logical grounds that its reasoning was affected by errors of law and has made a decision that was so unreasonable that no reasonable decision maker would have made, in that, despite the findings it made and evidence before it (see schedule A [to the notice of appeal]), the Tribunal was not satisfied that the Applicant has discharged the burden of proof cast upon him by section 14ZZK(b)(i) of the Taxation Administration Act 1953 on the balance of probabilities.
89 The questions of law in the notice of appeal relevant to these grounds are:
1. Whether, the Tribunal misconstrued and/or failed to apply or misapplied the correct legal test and principles governing the onus of proof under section 14ZZK(b)(i) of the Taxation Administration Act 1953?
2. Whether, on the evidence before the Tribunal and on the facts as found, the Tribunal was obliged in law to conclude that the Applicant has discharged the onus of proof in section 14ZZK(b)(i) of the Taxation Administration Act 1953?
…
9. Whether the Tribunal's decision was so unreasonable that no reasonable decision maker could have made [it]?
I accept that the above questions raise questions of law for the purposes of s 44 of the AAT Act.
90 Section 14ZZK of the Administration Act provides:
14ZZK Grounds of objection and burden of proof
On an application for review of a reviewable objection decision:
(a) the applicant is, unless the Tribunal orders otherwise, limited to the grounds stated in the taxation objection to which the decision relates; and
(b) the applicant has the burden of proving:
(i) if the taxation decision concerned is an assessment - that the assessment is excessive or otherwise incorrect and what the assessment should have been; or
(ii) in any other case - that the taxation decision concerned should not have been made or should have been made differently.
91 Mr Buzadzic's submissions in relation to grounds 1 and 2 are, in summary, as follows:
(a) Section 14ZZK(b)(i) provides that on an application for review, an applicant has the burden of proving that the assessment is excessive or otherwise incorrect and what the assessment should have been. It is established that the standard of proof is on the balance of probabilities: Evans v Federal Commissioner of Taxation (1988) 19 ATR 1784. In addition, Mr Buzadzic must prove on the balance of probabilities that there has been no fraud or evasion.
(b) In taxation matters, there are several statements of principle that bear on the manner in which the burden may be discharged. Mr Buzadzic relies on Imperial Bottleshops Pty Ltd v Federal Commissioner of Taxation [1991] FCA 352; 22 ATR 148 (Imperial Bottleshops) at 155 per Hill J; and Federal Commissioner of Taxation v Cassaniti [2018] FCAFC 212; 266 FCR 385 (Cassaniti) at [87]-[88] per Steward J.
(c) In general, the civil standard is not treated as a mathematical standard but as a reasonable attempt to find the facts in the circumstances of the particular case. The issue is whether the Tribunal was satisfied that it was more probable than not that the facts necessary to establish the case for Mr Buzadzic existed.
(d) Disbelief of the case presented by Mr Buzadzic does not necessarily permit the Tribunal to conclude that the case for the Commissioner is correct. The principles stated by the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; 67 ALJR 170 (Neat Holdings) at 170-171 apply equally to taxation cases. Two points are of particular relevance: (1) the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what is sought to be proved; and (2) in instances where there are serious allegations, the requirements of the standard should reflect a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct, and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. In Henderson v Queensland [2014] HCA 52; 255 CLR 1 at [98], Gageler J said that the judge should have given weight to "the conventional perception that persons do not ordinarily engage in criminal conduct".
(e) Consistent with Neat Holdings, the Tribunal should have, on the evidence, found that Mr Buzadzic did not engage in fraud or evasion so as to permit the Commissioner to assess outside the prescribed statutory time limits. What was required was that the Tribunal be satisfied that Mr Buzadzic had proved his case on the balance of probabilities. Insistence on corroboration and contemporaneous evidence, and the rejection of extensive evidence put before the Tribunal by Mr Buzadzic, elevated the standard of proof to beyond any doubt. That is not what is mandated by s 14ZZK(b)(i). Indeed, s 164 of the Evidence Act 1995 (Cth) provides that it is not necessary that evidence on which a party relies be corroborated.
(f) Here, as a result of the effluxion of time and statutory record-keeping requirements, there were some gaps in the evidence. It should have been sufficient that the circumstances raised a more probable inference in favour of what was alleged by Mr Buzadzic. The Tribunal should have taken into account the following:
(i) In relation to Unexplained Deposits: (1) taxpayers are not required to maintain documentary records of private transactions - the record-keeping requirements in s 262A of the ITAA 1936 and Div 900 of the ITAA 1997 are limited to transactions that occur in carrying on a business and to work-related expenses; (2) such record-keeping requirements are limited to five years; and (3) certain transactions, like dealings between friends and family members and sales of private chattels, do not lend themselves to the creation of a record. It is unrealistic to expect taxpayers to create records of all dealings and to hold them for an indefinite period of time.
(ii) In relation to Unverified Credit Entries, Mr Buzadzic engaged accountants and bookkeepers to attend to accounting matters. It was unreasonable to expect Mr Buzadzic with limited education and no accounting skills to question the sufficiency and/or correctness of accounting records and financial statements prepared by the bookkeeper and accountants.
(iii) Small family businesses normally involve dealings between related entities on the basis that the bookkeeper and accountants will account for those transactions. That necessarily involves moving funds between entities to ensure the financial viability of the group. It should be noted that the Buzadzic Group was substantial by 2013, when the financial controller was engaged, but it was a small business in the initial years when Mr Buzadzic commenced in the panel beating business. Those years form the subject of the assessments in issue.
(g) The Tribunal appears to have elevated the standard to a level far higher than the balance of probabilities in concluding (at [92]) that it was "not impossible" for Associated Entities' cash amounts to be deposited directly in Mr Buzadzic's accounts and that "not fully traceable amounts could be received" from customers. That finding is irrational, unreasonable and contrary to evidence. In addition, on the uncontradicted evidence, such cash receipts were very small and irregular.
(h) There are other problematic evaluations of the evidence: (1) in relation to Unexplained Deposits, at [88], [117], [119], [124], [125], [127], [130], [144], [145], [149], [150], [152]-[158] of the Tribunal's reasons; (2) in relation to Unverified Credit Entries, at [159]-[161]; and (3) in relation to discrepancies between opening and closing balances, at [163], [165], [168]-[173]. The conclusions reached by the Tribunal are all the more problematic because it found that "it [is] possible, potentially even likely, that there exists an explanation for some if not all of the discrepancies identified by the Commissioner between opening and closing balances and it is possible that such an explanation might demonstrate that the adjustment made to align those balances reflected transactions that were not attributable to undeclared income" (at [171]).
(i) In relation to discrepancies between opening and closing balances, the evidence-in-chief and in cross-examination was consistent that:
(i) The adjustments to the ledger were only made after the bookkeeper (Mr Stirling) was provided with an invoice or documents that sustained the adjustment. Both external accountants (Mr Hadded and Mr Kane) had no reason to suspect that the adjustments were inappropriate and both were available to be consulted to ensure that the adjustments were appropriately made.
(ii) Mr Hadded, Mr Kane, Mr Stirling, Mr Evans and Mr Vasudevan gave consistent evidence that: (1) the ledgers and the accounts were incomplete and required end-of-year adjustments; (2) the final accounts were consistent and contained no errors; and (3) there was no discrepancy between opening and closing balances between years in the adjusted end-of-year accounts. Section 1305 of the Corporations Act provides that the final accounts are admissible in evidence and are prima facie evidence of any matter stated or recorded in them.
(j) The Tribunal should have accepted that evidence and found that the Unverified Credit Entries were the product of the Commissioner relying on incomplete accounts that were not adjusted by the accountants - as mandated by ordinary accounting standards and practices. In the alternative, the Tribunal should have drawn an inference that Mr Buzadzic had explained the deposits. Mr Buzadzic relies on Annexures A, B & C to the submissions for the applicants dated 20 February 2020 filed in the Tribunal proceedings. Annexure A shows that various companies in the group distributed dividends to the shareholder Buzadzic Pty Ltd atf the D & L Buzadzic Trust. Annexure B shows that Buzadzic Pty Ltd atf the D & L Buzadzic Trust distributed the net income of the trust to Mr and Mrs Buzadzic and to Delrich Arch Pty Ltd atf the Buzadzic Family Trust. Delrich Arch Pty Ltd atf the Buzadzic Family Trust distributed its net income to in the main Mr and Mrs Buzadzic. Buz Cubby Pty Ltd atf the Buzadzic Cubby Trust distributed its net income for the 2013 Year to Mr and Mrs Buzadzic. Annexure C shows adjustments to the director loan accounts over the years in issue.
(k) Both Mr Evans and Mr Hadded gave evidence to the effect that none of these distributions (dividend and trust) were made by way of cash payments; rather, all were effected by appropriate accounting and book entries. Indeed, the Commissioner has not suggested otherwise. That evidence then provided the basis for an inference that the dividends that came to be trust distributions were the source of the adjustments in the director loan accounts. It follows that none of these adjustments were assessable to Mr Buzadzic.
(l) It follows from the foregoing statements made by the Tribunal, and the evidence before the Tribunal, including that particularised in Schedule A to the notice of appeal that: the Tribunal either misconceived or misapplied the correct test and legal principles that govern the onus of proof; further or alternatively, the Tribunal's decision that Mr Buzadzic failed to discharge the burden of proof was unreasonable.
92 I note that there is some overlap between grounds 1 and 2, on the one hand, and some of the later grounds of appeal, on the other. For example, the issue of fraud or evasion is raised both in grounds 1 and 2 and in grounds 5, 6 and 7. The thrust of grounds 1 and 2 is the contention that the Tribunal applied too high a standard of proof, while the other grounds, to the extent that they overlap, have a different emphasis.
93 In my view, Mr Buzadzic has not established that the Tribunal fell into error by adopting or applying too high a standard of proof. In my view, it is clear from the Tribunal's reasons that it correctly understood that: (a) Mr Buzadzic bore the burden of proof; (b) this required him to show that the assessments in issue were excessive; and (c) the standard of proof was the balance of probabilities. Further, Mr Buzadzic has not demonstrated that the Tribunal erred in the way that it applied these principles. That is to say, Mr Buzadzic has not established that the Tribunal applied too high a standard of proof in the course of deciding the case.
94 The principles relating to burden of proof in the context of an assessment under s 167 of the ITAA 1936 were helpfully summarised by Derrington J in Federal Commissioner of Taxation v Ross [2021] FCA 766; 174 ALD 77 (Ross) at [46]-[48].
95 At the commencement of the section of its reasons dealing with the burden of proof, the Tribunal stated (at [122]):
The sixth general consideration concerns the relevant burden of proof. The Applicant bears the onus of proving that the amended assessment is excessive. Unless the Commissioner agrees to narrow the issues, this burden is not discharged by showing error in the basis on which the amended assessments were issued. Rather, it is for the Applicant to establish that the amount assessed exceeds their actual liability. This requires the Applicant to demonstrate what their actual taxable income is.
96 In support of these propositions, the Tribunal set out, at [123], the following passage from the judgment of Nettle J in Bosanac at [29]-[30]:
29 … As the primary judge recorded, although the Commissioner conceded that the two amounts totalling $600,000 were not taxable income, the Commissioner "did not otherwise admit the underlying factual foundation alleged by the [plaintiff]". Thus, as both the primary judge and the Full Court reasoned, in effect, the position remained that the amount of taxable income for which the Commissioner contended was the amount shown in the Objection Decision. In substance, the only effect of the Commissioner's concession was that the plaintiff was relieved of the necessity of negativing the inference, otherwise available, that the two amounts totalling $600,000 were taxable income. The onus remained on the plaintiff to adduce evidence sufficient to establish on the balance of probabilities the true amount of his taxable income (of course, making such forensic use as could be made of the Commissioner's concession that the conceded amounts were not assessable income) and thereby that the amount of taxable income as determined by the Commissioner exceeded the true amount. The plaintiff was not entitled to proceed on the basis that the conceded amounts could simply be deducted from the amount of taxable income that the Commissioner had determined in the relevant year of income.
30 That reasoning was correct. As has been seen, although the Commissioner and a taxpayer may agree to confine an appeal to a specific point of law or fact - and where that occurs, the taxpayer might succeed in the appeal by demonstrating that he or she is entitled to succeed on that point - in the absence of such an arrangement, the Commissioner is entitled to rely on any deficiency in the taxpayer's proof of the excessiveness of the amount assessed in order to uphold the assessment. Equally, if all the facts are known, and the amount of taxable income in dispute depends only on the legal complexion of the established facts, the taxpayer may succeed by demonstrating on the balance of probabilities that the amount in question does not bear that legal complexion. But where, as here, an appeal proceeds on the basis that not all of the material facts are known, either because the taxpayer has been less than forthcoming in making disclosures to the Commissioner or for some other reason, the taxpayer cannot succeed by showing only that the basis of the Commissioner's assessment was in some respect erroneous; since for all that can be told, unless and until the taxpayer proves to the contrary, there may be other income of which the Commissioner was not aware and which the Commissioner has not taken into account. In order to succeed in such a case, the taxpayer must discharge the burden of demonstrating on the balance of probabilities the true amount of the taxpayer's taxable income and thus that the amount determined by the objection decision is excessive. Here, that required the kind of wide survey and exact scrutiny of the plaintiff's business activities to which the primary judge referred and which was conspicuously absent from the plaintiff's presentation.
(Footnotes omitted; emphasis added.)
97 Mr Buzadzic does not take issue with the principles stated in the above passage. The emphasised parts of the above passage make clear that the applicable standard of proof is the balance of probabilities. The Tribunal set out the above passage at the beginning of the section of its reasons dealing with the burden of proof. In light of these matters, I consider that the Tribunal correctly understood that the standard of proof was the balance of probabilities.
98 It seems that Mr Buzadzic's real complaint is not so much the Tribunal's statement of principles, but the way in which it applied those principles. In other words, the way in which it went about the task of considering the evidence and reaching the conclusion that it was not satisfied that Mr Buzadzic had discharged the burden of proof. I have set out extensive extracts from the Tribunal's reasons earlier in these reasons. The Tribunal provided clear and logical reasons for reaching the conclusion that Mr Buzadzic had not demonstrated what his taxable income was, and therefore had not shown that the amounts in the assessments in issue were excessive. In particular, the Tribunal relied on the following matters and reached the following conclusions:
(a) there were clear deficiencies in the records provided to the Tribunal; the basis for accounting entries remained unexplained; the manner in which funds flowed between the entities was not explained except in the form of generalisations (at [125]);
(b) the source and provenance of identified deposits and credit entries (and, in particular, the transactions that had given rise to the deposits or credit entries) remained unexplained (at [125]);
(c) the Tribunal was not satisfied that Mr Buzadzic had shown what the source or sources of money reflected in the disputed deposits and credits (including credits to eliminate apparent opening and closing loan account balance mismatches) was or were, and as a consequence had not shown that: the deposits from the Associated Entities and the unexplained credits were not attributable to amounts of undeclared income derived by Mr Buzadzic; and the deposits from the non-associated entities and unknown persons were not attributable to amounts of undeclared income derived by Mr Buzadzic from an unidentified source (at [127]); and
(d) the Tribunal did not accept the unsupported explanations for the deposits proffered by Mr Buzadzic; the Tribunal considered Mr Buzadzic's oral evidence concerning the deposits to be speculative and unreliable (at [150]).
99 It was open to the Tribunal to rely on these matters and reach these conclusions. These matters and conclusions do not suggest that the Tribunal applied too high a standard of proof.
100 I note that, at [126], the Tribunal stated that "[t]he burden of proving a negative is not easily discharged". A footnote to that sentence cited Hines v Federal Commissioner of Taxation (1952) 5 AITR 305 at 318, a judgment of the High Court. This statement acknowledges the difficulties facing an applicant in the position of Mr Buzadzic; it does not suggest that the Tribunal applied too high a standard of proof.
101 At [129] of its reasons, the Tribunal set out what appeared to be Mr Buzadzic's explanations for the deposits to his bank accounts. In the paragraphs that followed ([130]-[134]), the Tribunal explained why it did not accept these explanations. I do not consider that these paragraphs demonstrate, or even suggest, that the Tribunal applied too high a standard of proof. In these paragraphs, the Tribunal explained why it did not accept the explanations put forward by Mr Buzadzic. In my view, it was open to the Tribunal not to be satisfied with the explanations provided by Mr Buzadzic, for the reasons that it gave. The Tribunal also provided a more detailed analysis of the evidence relating to deposits into bank accounts at [135]-[149].
102 I have set out, above, extracts from the sections of the Tribunal's reasons dealing with "Unverified Credit Entries - Mr Buzadzic" and "Discrepancies between opening and closing balances". In each of these sections, the Tribunal provided clear and logical reasons for reaching the view that Mr Buzadzic had not demonstrated what his taxable income was, and therefore had not shown that the amounts in the assessments in issue were excessive. The way in which the Tribunal approached its task in these sections was consistent with the applicable standard of proof being the balance of probabilities. I do not consider that it applied too high a standard of proof.
103 In relation to fraud or evasion, the Tribunal, at [201], referred to different ways in which a taxpayer may be able to demonstrate that there was no fraud or evasion, or that the Commissioner should not have formed the view that there was fraud or evasion. The Tribunal referred, at [203], to certain submissions made by Mr Buzadzic. At [204], the Tribunal explained why it rejected those submissions. The Tribunal concluded, at [205], that Mr Buzadzic had not discharged the burden of showing that there was no fraud or evasion. The Tribunal stated that, in circumstances where Mr Buzadzic had been assessed and had failed to demonstrate that he should not have been assessed, the Tribunal had no basis on which it could be satisfied that the shortfall in his taxable income was not attributable to a blameworthy act. It was open to the Tribunal to reach this view on the basis of the matters to which it referred in the section of its reasons dealing with fraud or evasion. There is no suggestion that the Tribunal did not correctly appreciate that the applicable standard of proof was the balance of probabilities.
104 Insofar as Mr Buzadzic relies on Imperial Bottleshops, I do not consider there to be any inconsistency between the approach outlined by Hill J in the relevant passage and the way in which the Tribunal in the present case approached its task. In the relevant passage, Hill J stated (at 155):
A taxpayer who does not keep records of his deductible outgoings faces a very difficult task. If he goes into the witness box and swears that he has incurred the outgoings he is making a self-serving statement. That does not necessarily mean that he is not to be believed. Such a statement, like statements of purpose, or object or state of mind must, however, be "tested most closely, and received with the greatest caution": Pascoe v FCT (1956) 6 AITR 315; 11 ATD 108 at 111. It would, of necessity, be a rare case indeed where a taxpayer, claiming to have expended a very large sum of money on trading stock and other business expenses, would succeed in satisfying the burden of proving that the assessment is excessive. Some other corroborative evidence would normally be required which makes it more probable than not that his sworn testimony is to be believed. It must, however, be borne in mind that the evidence of a taxpayer is not to be regarded as "prima facie unacceptable", cf McCormack v FCT (1979) 143 CLR 284 at 302 per Gibbs J; 9 ATR 610; 23 ALR 583.
105 Indeed, in the above passage, Hill J stated that, in the circumstances described, "[s]ome other corroborative evidence would normally be required which makes it more probable than not that [the taxpayer's] sworn testimony is to be believed".
106 Insofar as Mr Buzadzic relies on the judgment of Steward J (with whom Greenwood J agreed) in Cassaniti, I do not consider there to be any inconsistency between the principles there stated and the approach taken by the Tribunal. In that case, Steward J stated at [87]-[88]:
87 I should finally address a more general submission made by the Commissioner that the evidence "was insufficient". The Commissioner relied upon the fact that the respondent had failed to call any other witness to corroborate her claims …
88 Contending that evidence was "insufficient" in the face of three sworn affidavits of the respondent, together with the exhibits attached thereto, and her answers in cross-examination, may suggest that a taxpayer bears a special burden of proof. However, other than the necessity to scrutinise evidence given by the taxpayer him or herself with care, no such special burden exists. This is a case in which the taxpayer seeks declarations. The following propositions, derived from the judgment of Hunt J in Allied Pastoral, apply equally to a tax appeal made to this Court pursuant to s 14ZZ of the TAA as well as to other forms of revenue proceedings, such as here, the seeking of declarations against Commissioner:
(1) first, where the onus is on the taxpayer (whether pursuant to s 14ZZO of the TAA or otherwise) the degree or standard of proof required is that which ordinarily applies in civil proceedings. The direction given to a jury in civil cases aptly describes that onus by reference to a pair of scales and to the arguments of each party being placed at each end. As Hunt J said in Allied Pastoral:
… if the plaintiff succeeds … in weighing down those scales ever so slightly in his favour then he has discharged the burden he carries …
(2) secondly, for that purpose it is not obligatory for a taxpayer, in order to discharge his burden of proof, to call all material witnesses and to produce all material documents which support her or his or its position;
(3) [thirdly], there is no requirement that evidence can only be accepted as admissible and probative if it is corroborated;
(4) [fourthly], the tribunal of fact is free to accept the evidence of the taxpayer alone if it finds the taxpayer to be truthful;
(5) finally, it would usually be prudent to corroborate the evidence of a taxpayer. It is also prudent to adduce contemporaneous objective evidence. But prudence should not be confused with the requirements of the law.
107 In the present case, the Tribunal's statements about the deficiencies in the evidence led by Mr Buzadzic (including due to the lack of corroborative evidence and/or contemporaneous documentary evidence) do not suggest that the Tribunal incorrectly considered there to be a legal requirement that Mr Buzadzic provide corroborative material; rather, those statements explained why, in the circumstances of this case, Mr Buzadzic had not discharged his burden of demonstrating what his taxable income was, and therefore that the amounts in the assessments in issue were excessive.
108 Insofar as Mr Buzadzic relies on the principles stated by the High Court in Neat Holdings, I do not consider that these assist in the present context. It is important to note that the Tribunal did not make findings to the effect that Mr Buzadzic had engaged in fraudulent or evasive conduct. Rather, the Tribunal concluded that it was not satisfied that Mr Buzadzic had discharged his burden of proof, including that he had not discharged the burden of showing that the shortfall in his taxable income was not attributable to a blameworthy act (at [205]).
109 Some of Mr Buzadzic's submissions in relation to grounds 1 and 2 appear to be an invitation to this Court to engage in a process of merits review, that is, a review of the merits of the factual findings or conclusions reached by the Tribunal. In particular, the submissions that the Tribunal "should have accepted" certain evidence, and that the Tribunal "should have drawn an inference" to a particular effect, appear to have this character. Consistently with the principles relating to what constitutes a "question of law", discussed above, if the submissions are intended in this way, they would go beyond the scope of an appeal on a question of law for the purposes of s 44 of the AAT Act. I will, therefore, treat such submissions as contending that the relevant findings or conclusions were unreasonable in the sense that no reasonable decision-maker could have made or reached them, or that they otherwise lacked an evident and intelligible justification. The principles of legal unreasonableness in administrative decision-making have been considered by the High Court in a number of recent cases, particularly in the migration context: see, eg, Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332; and Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 (SZVFW). In the latter case, Kiefel CJ stated at [10]-[11]:
10 In the joint judgment in Minister for Immigration and Citizenship v Li it was explained that a decision made in the exercise of a statutory power is unreasonable in a legal sense when it lacks an evident and intelligible justification. That may be so where a decision is one which no reasonable person could have arrived at, although an inference of unreasonableness is not to be drawn only where a decision appears to be irrational. None of these descriptions could be applied to the Tribunal's decision in the present case.
11 Statements such as that made in the Wednesbury case [Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 230], that a decision may be regarded as unreasonable if no reasonable person could have made it, may not provide the means by which a conclusion of unreasonableness may be arrived at in every case. But it serves to highlight the fact that the test for unreasonableness is necessarily stringent. And that is because the courts will not lightly interfere with the exercise of a statutory power involving an area of discretion. The question is where that area lies.
(Footnotes omitted.)
110 I am not satisfied that any of the findings or conclusions that are challenged by Mr Buzadzic in his submissions in relation to grounds 1 and 2 are unreasonable in the sense described above. In my view, it is not shown that any of those findings or conclusions (including the conclusion that Mr Buzadzic had failed to discharge the burden of proving that the assessments in issue were excessive) lacked an evident and intelligible justification. To the contrary, the findings and conclusions appear to be clear and logical and open on the evidence before the Tribunal.
111 For these reasons, grounds 1 and 2 are not made out.