Donoghue v Commissioner of Taxation

LOGAN J: 1 Mr Garry John Donoghue (Mr Donoghue) has instituted what is termed a taxation appeal in the original jurisdiction of this Court, pursuant to Pt IVC of the Taxation Administration Act 1953 (Cth) (Taxation Administration Act) as amended. 2 An ability for the recipient of an assessment by the respondent Commissioner of Taxation (Commissioner) to engage, as the Taxation Administration Act presently provides, the judicial power of the Commonwealth in order to contest a taxation liability is a constitutionally necessary incident of a valid law with respect to taxation: Deputy Commissioner of Taxation v Brown (1958) 100 CLR 32 at 40; Giris Pty Ltd v Federal Commissioner of Taxation (1969) 119 CLR 365 at 378-379; MacCormick v Federal Commissioner of Taxation (1984) 158 CLR 622; Federal Commissioner of Taxation v Futuris Corporation Ltd (2008) 237 CLR 146 at [9]. 3 In this particular proceeding, Mr Donoghue has challenged objection decisions in respect of amended assessments for the income years which respectively ended on 30 June 2005, 2006 and 2007. Those assessments each issued on 21 December 2011. In total, the income tax assessed by these assessments is $9,417,090.12. Penalties have also been imposed. These separately total $7,576,453.15. 4 It will be necessary shortly to detail a chronology of events. For the present, it is necessary to record that today is the first day appointed for the hearing of Mr Donoghue's taxation appeal. All of this week has been set aside for that purpose. These hearing dates were identified as long ago as 27 July 2016. On that date and apart from appointing this week as the time when the taxation appeal would be heard, I made particular interlocutory directions directed to the end of the hearing occurring this week. 5 When the appeal was called on this morning at the appointed time, there was no appearance either by Mr Donoghue or on his behalf. The Commissioner then called on and sought to have heard and determined his earlier filed application, returnable today, for the dismissal of Mr Donoghue's taxation appeal on the basis of a want of prosecution, including in that regard alleged non-compliance with case management directions. 6 While Mr Donoghue did not appear, he did file two affidavits earlier this month. One was directed to the subject of his ability to appear and to comply with court orders. The other was directed to the question which is at the heart of the taxation appeals. In respect of each income year, that question is whether Mr Donoghue was an Australian resident for Australian taxation law purposes. 7 Mr Donoghue's taxation appeal forms but part of an overall challenge which he made to the assessments. In separate although not unrelated proceedings, Mr Donoghue sought the judicial review of the subject assessment decisions on the basis that they were invalid. His contentions held particular attraction to me but not to the Full Court: see Federal Commissioner of Taxation v Donoghue (2015) 237 FCR 316. A subsequent application by Mr Donoghue for special leave to appeal to the High Court against the Full Court's judgment was dismissed with costs by the High Court: see Donoghue v Federal Commissioner of Taxation [2016] HCASL 131. The listing of the case for directions on 27 July 2016 and the fixing of the date for the hearing of the taxation appeals was responsive to and brought on as soon as possible after the disposition of Mr Donoghue's special leave application. 8 If only for completeness, lest it be thought the subject escaped the attention either of the parties or me, I should record that there was expressly no objection raised by the parties to my continuing to have responsibility for materially the taxation appeal, having been the trial judge in respect of the judicial review application. 9 It ought also to be recorded that another part of the litigation as between Mr Donoghue and the Commissioner concerns proceedings for the recovery of the debt to the Commonwealth created by the assessments of income tax and penalties. These recovery proceedings are presently adjourned pending the hearing and determination of the taxation appeal. 10 Mr Donoghue's is the second case which I have encountered where the hearing of a taxpayer's appeal against objection decisions has been diverted by that taxpayer's prosecution of a judicial review application. The earlier such case was Denlay v Federal Commissioner of Taxation (2011) 193 FCR 412. On that occasion, neither in the original jurisdiction nor on subsequent appeal was there any merit found in the allegation that the assessments concerned were invalid. As it transpired in relation to Mr and Mrs Denlay, their funds, which might have been deployed earlier to challenging on the merits the objection decisions and underlying assessments, were exhausted by that judicial review diversion. They became bankrupt. Their bankruptcy trustee determined not to prosecute the taxation appeals. That had the result that those appeals were dismissed: see Denlay v Federal Commissioner of Taxation (No 3) (2012) 86 ATR 667. 11 As with Mr and Mrs Denlay's case, so in the present had there been no such diversion the assessments' merits might earlier have been heard and determined; perhaps even favourably determined. I make that observation in this case in light of Mr Donoghue's longer affidavit in which he details at some length his residential and working life on and from 1992. It is no part of my task today to reach any concluded view in respect of the merits of the taxation appeal. It is just that if Mr Donoghue's evidence were accepted, there is, to say the least, a reasonable basis upon which it might be concluded that in the income years in question he was not an Australian resident. Subject to that qualification and to what follows, I understood the Commissioner to concede this. 12 The question of residency remains very much at large. Residency for income tax purposes always entails a question of fact to be determined on the basis of the whole of the evidence before the court. In that regard, as in any taxation appeal, Mr Donoghue as the taxpayer bears the onus of proof. The Commissioner's absence of objection today to any reliance by Mr Donoghue on his affidavit was very much on the basis that it was an untested body of evidence which was pertinent to a question as to whether there should be summary dismissal, but in no way accepted by the Commissioner as determinative of the ultimate question of residency or any other substantive question in the taxation appeal. In the event that the taxation appeal proceeds beyond today, the Commissioner would wish to cross-examine Mr Donoghue. Further, the Commissioner would wish to place other evidence before the court in relation to the question of whether the onus of proof has been discharged, including materially in that regard whether it should be concluded that Mr Donoghue was in each income year a resident for Australian taxation purposes. 13 With the experience of both Denlay and now Mr Donoghue's case in relation to challenges to validity of assessments where there exists at least a basis for reasonably contending that the substantive assessments have no merit, I consider it desirable to observe that those advising taxpayers need to reflect long and hard as to where a taxpayer's usually limited financial resources are best deployed. That, though, is an observation in relation to future taxation litigation. Today I must determine what ought to be the fate of the present. That necessitates setting out at some length a chronology of events. Some of these events emerge from affidavits read on behalf of the Commissioner today; others from earlier events referred to in the Full Court's judgment. 14 As I have mentioned, the assessments concerned issued on 21 December 2011. There is quite some history of events before then. That is related in the judgment of the Full Court in the judicial review proceeding. Mr Donoghue's objection was lodged on 17 February 2012. The Commissioner came to determine that objection adversely to Mr Donoghue. In so doing, the Commissioner allowed Mr Donoghue some extensions of time administratively for the purpose of providing further information. I say that because it should not be thought that the Commissioner delayed unduly the determining of Mr Donoghue's objection. There were reasons in terms of good revenue law administration practice why the Commissioner took time to determine the objection. Suffice it to say, on 18 June 2013 Mr Donoghue filed his notice of appeal in this Court against what is termed the appellable objection decision made in respect of those assessments of 21 December 2011. 15 On 17 July 2013, the Commissioner filed his appeal statement in accordance with this Court's taxation appeals practice. Mr Donoghue was granted, on 1 August 2013, an extension of time within which to file and serve his appeal statement and proforma questionnaire. On 14 February 2014, there was an adjournment of the case management hearing in respect of the taxation appeal to 24 March 2014. By that stage, the taxation recovery proceedings were being managed in conjunction with the taxation appeal. On 11 July 2014, the Commissioner came to issue what is known as a departure authorisation certificate limiting Mr Donoghue's departure from Australia. On 27 July 2016, the case management conference in respect of the taxation appeals, to which I have already referred, occurred. 16 On 2 February 2017, Mr Donoghue was granted an extension of time to 7 February to file and serve affidavit evidence concerning his ability to travel to Australia or to give evidence by video link. The filing of such evidence was one step contemplated in the directions made on 27 July 2016. 17 On 2 February 2017, Mr Damien Bourke (Mr Bourke), then Mr Donoghue's solicitor, made and filed an affidavit in which he set out particular details concerning Mr Donoghue's then medical condition and treatment. From that affidavit, it emerges that, at that stage, Mr Donoghue had been diagnosed with "incisional hernia" in December 2016 and required surgery and hospitalisation and recovery time in respect of that. It further emerged that Mr Donoghue had prostate issues which required investigation, that he was still receiving chemotherapy, and that he had high cholesterol and needed treatment for a lesion in his coronary arteries once chemotherapy had finished. 18 At that stage, it was anticipated that, as at July 2017, Mr Donoghue would have completed any surgical interventions in respect of either a hernia or prostate condition, recovered from the same and completed chemotherapy. Further, at that stage, Mr Bourke's evidence was that Mr Donoghue had advised him that, in September 2017, he was prepared to, and anticipated, to be able to travel to Australia to give evidence. Mr Donoghue was then resident in London. 19 On 6 February 2017, the Commissioner amended the departure authorisation certificate so as to extend the authorisation granted to remain out of Australia, and instead to require Mr Donoghue's return by 1 August 2017. The letter in this regard was sent to Mr Donoghue care of Russell's Law. 20 On 13 April 2017, an amended appeal statement was filed on behalf of Mr Donoghue. This ought to be have been filed by 31 March 2017 in accordance with orders made on 27 February (this was subsequently varied by orders made on 5 April 2017 to require the amended appeal statements be filed by 13 April 2017). 21 The Commissioner has contended that this amended appeal statement should not be allowed as leave has not been granted to change underlying grounds of objection. It is necessary to record that the Taxation Administration Act contemplates that a taxation appeal is to be determined by reference to grounds of objection. That Act makes no reference whatsoever to appeal statements. Appeal statements serve the function of ensuring procedural fairness, both to the Commissioner and, it must be said, even more so to taxpayers by identifying in advance all of the issues for determination on a taxation appeal. Not all of those issues are identified just by reference to grounds of objection. It has long been the case that the Commissioner is entitled to defend an assessment by reference to particular bases which did not commend themselves to him in the making of the assessment concerned. A very particular purpose of the appeal statement practice of this Court is to ensure that taxpayers know in advance the bases upon which the Commissioner proposes to defend an assessment. Of course, they also have a purpose in identifying to the Commissioner the particular issues which are to be prosecuted by a taxpayer. Not all grounds of objection may ultimately commend themselves to a taxpayer. One useful purpose served by a taxpayer's appeal statement serves is the identification of such issues. 22 On 28 June 2017, the taxation appeals returned to court for case management. At that time, I granted Mr Donoghue leave to issue a subpoena if necessary to a particular identified person to give evidence in these proceedings. I also granted him leave to file and serve such appeal statement, if any, as he may be advised on or before 17 July 2017. A related direction gave the Commissioner leave to file an amended appeal statement in response on or before 14 August 2017. There was also a direction made which required Mr Donoghue to file and serve any additional documents to be included in a supplementary joint bundle of tender documents on or before 17 July 2017. There were related directions in respect of objections to existing tender documents. Further, there was a direction varying those made on 27 February 2017 which required Mr Donoghue to file and serve any affidavits upon which he intended to rely on or before 17 July 2017. Correspondingly, the time granted to the Commissioner for the filing and serving of affidavits in reply was extended to 14 August 2017. There was a related direction in respect of the filing and serving of lists of objections to any filed affidavits. 23 At that time, I also flagged with the parties, because of my impending absence from Australia on leave the whole of July, when any further application arising from either a solicitor ceasing to act for Mr Donoghue or video link evidence might be heard. There was particular reference in the course of that case management hearing to the possibility of Mr Donoghue giving evidence by video link, the need to organise the same, and the possibility that a venue for that might be found at the Royal Courts of Justice in London. 24 On 25 July 2017, Mr Donoghue's then solicitors, via Mr Bourke, foreshadowed that by correspondence they would cease to act for him. An email of that date was sent to Mr Donoghue. A sequel to that was the filing on 7 August 2017 by that firm of a notice of ceasing to act. 25 Thereafter, throughout August and September, there was an exchange of correspondence between either the Australian Government Solicitor, or, as the case may be, this Court's registry with respect to the need on Mr Donoghue's part to identify an address for service in Australia. Such a need is prescribed in r 11.01 of the Federal Court Rules 2011 (Cth). It took quite some time for Mr Donoghue to appreciate this particular need. He has, though, filed an address for service in Australia. The address concerned is that of his estranged wife, Mrs Sandra Donoghue, in Brisbane. He has additionally given an email address. Mr Donoghue's regularisation of an address for service in Australia was complete by 3 October 2017. 26 Also the subject of extensive correspondence in October was an appearance by video link today from London by Mr Donoghue. The long and the short of that is that Mr Donoghue failed to appreciate the need which fell on him to organise in a timely way in advance of today, a video link facility capable of reliable interface with this Court's technology. He filed belatedly, and by that I mean in early October, an application for such facility to be afforded him, but failed in so doing to identify any such facility. For that reason, his application was not granted. 27 Mr Donoghue had also alternatively identified telephone as a means of an appearance. He did so as belatedly as 1:00 am this morning (Brisbane time) in an exchange by email with the Court's registry. 28 An appearance either by video link or by telephone from overseas requires very careful advance preparation to ensure that documents to be referred to are prepositioned in hard copy, or at least readily electronically available. On no occasion before today has this particular need dawned on Mr Donoghue. His video link application and his telephone application are noteworthy for an absence of an appreciation of this. 29 It is not for the officers of this Court's registry to act in a legal advisory way, lest the paramount requirement of neutrality be subverted. Of course, some guidance may be given in respect of matters of procedure, but it is a mistake for any party, litigants in person especially included, to regard registrars or other registry officers as legal aid officers; they are not. 30 Though he did not appear, Mr Donoghue has certainly raised by affidavit and in correspondence particular issues as to why the dismissal ought not to be granted. 31 In the affidavit filed in October dealing with his personal circumstances, Mr Donoghue exhibits a letter from a specialist medical practitioner, or at least has sent that letter through by communication both with the Australian Government Solicitor and the Court's registry. That letter is from a Professor Justin Stebbing, who practises from rooms in Harley Street, London. It is addressed, "To whom it may concern", and dated 4 October 2017. It is presently exhibit 5. 32 Professor Stebbing describes himself as a Professor of Cancer Medicine and Medical Oncology. There is no affidavit from Professor Stebbing, much less has the Commissioner been able to cross-examine him. It is desirable to set out the text of Professor Stebbing's letter in full: Diagnosis: Moderately differentiated colonic adenocarcinoma. Received Folfox then 5-FU chemotherapy. Mr Donoghue is a long standing patient of mine on careful and close follow up from his colon cancer. He requires regular scans and blood tests as well as follow up of toxicities of chemotherapy. His initial treatment was complex and required surgery and chemotherapy. Currently, we are now waiting to operate on two hernias in his mid-abdomen caused by the ileostomy and initial rectal cancer removal. I also has the port in his chest. This operation will require an 8 to 10 day hospital stay followed by 5 weeks enforced rest. The MRI and PT scan have now been done. There is a suggestion of lymph node enlargement, again requiring close following up from his multi-disciplinary team. On top of this he has hypertension, pre-diabetes, stress and depression, insomnia and a few other minor complains. It is strongly advisable that he stays here with his current team; please contact me if you require any further information. [sic] 33 There are a number of features of the opinions expressed this letter which should be remarked upon. Those opinions seem to me to confirm evidence given by Mr Bourke in February this year and update the same in terms of Mr Donoghue's medical condition. As a matter of general impression, Mr Donoghue appears to me to be gravely ill. 34 That said, and as the Commissioner highlighted, there is no opinion proffered as to by when Mr Donoghue might be sufficiently well either to give evidence by video link, or to travel to Australia. At most, it looks as if, when the operation on the hernias referred to by Professor Stebbing occurs, there will be a sequel of up to 10 days in hospital, and up to five weeks of enforced rest thereafter. More than that, it is impossible to discern or infer. 35 Mr Donoghue's departure authorisation position has yet administratively to be regularised. In fairness, though, the Commissioner did not seek to rely upon the present absence of regularisation as a telling basis for the dismissal of the taxation appeals. I apprehend that the reason for that was that the Commissioner, as a matter of good revenue law administration, did wish to consider the impact of the but recently received report from Professor Stebbing, and at least the inferential application and related reason for the extension further of the authorisation to remain out of Australia. 36 What the Commissioner did point to was the lengthy time in advance of today when the trial dates had been identified, and the non-compliance, or belated compliance, with particular case management directions. It looks as if what finally occasioned the filing of Mr Donoghue's detailed affidavit going to residence was the Commissioner's application for dismissal for want of prosecution and the imminence of the fixed trial dates. 37 There was once a time when case management considerations did not loom as compellingly in relation to the making of interlocutory decisions with respect to practice and procedure, including with respect to dismissal of want of prosecution. The philosophy of earlier times is notably found in Birkett v James [1978] AC 297. One finds there at p 318, Lord Diplock expressing the view that: The power should be exercised only where the court is satisfied either (1) that the default has been international and contumelious, e.g., disobedience to a peremptory order of the court or conduct amounting to an abuse of the process of the court; or (2) (a) that there has been inordinate and inexcusable delay on the part of the plaintiff or his lawyers, and (b) that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or to have caused serious prejudice to the defendants … Views to like effect in that case are to be found in the speeches of Lords Salmon and Edmund Davies at p 331. 38 Also exemplifying considerations regarded as relevant in earlier times, in relation to the exercise of a discretion to dismiss an action for want of prosecution, is a summary offered in Ulowski v Miller (1968) SASR 277. In that case, the following considerations were identified as intruding on the exercise of a discretion: (1) length of the delay; (2) explanation for the delay; (3) hardship to the plaintiff from dismissal of the action, especially if that leaves the action statute barred; (4) prejudice to the defendant in allowing the action to continue after a long delay; and (5) conduct of the defendant. It is plain enough from the judgment of Bray CJ, at p 280, in that case that there was no intention, at all, that these considerations be regarded as exhaustive. Rather, and at that time, there was no rule for dealing with dismissal applications other than that they fell for the exercise of a judicial discretion, to be exercised according to the particular circumstances of a given case, with prescription of criteria, at least in an exhaustive way, being undesirable. 39 Considerations such as those mentioned remain pertinent, but they are far from the only considerations in modern times. So much is apparent from the provisions of s 37M and s 37N of the Federal Court of Australia Act 1976 (Cth). The overarching purpose of civil practice and procedure, described in s 37M and the requirement, found in s 37N for parties to act consistently with that overarching purpose apply just as much to the parties to a taxation appeal as they do to any other civil litigation. 40 Informed by those provisions, the Commissioner understandably and aptly, with respect, made reference to observations of the High Court in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 (Aon). In particular, the Commissioner stressed the observations made by French CJ at [30], and the separate observations made by Gummow, Hayne, Crennan, Kiefel and Bell JJ at [113] and [114]: 30 It might be thought a truism that "case management principles" should not supplant the objective of doing justice between the parties according to law. Accepting that proposition, JL Holdings cannot be taken as authority for the view that waste of public resources and undue delay, with the concomitant strain and uncertainty imposed on litigants, should not be taken into account in the exercise of interlocutory discretions of the kind conferred by r 502. Also to be considered is the potential for loss of public confidence in the legal system which arises where a court is seen to accede to applications made without adequate explanation or justification, whether they be for adjournment, for amendments giving rise to adjournment, or for vacation of fixed trial dates resulting in the resetting of interlocutory processes. … 113 In the past it has been left largely to the parties to prepare for trial and to seek the court's assistance as required. Those times are long gone. The allocation of power, between litigants and the courts arises from tradition and from principle and policy. It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings. 114. Rule 21 of the Court Procedure Rules recognises the purposes of case management by the courts. It recognises that delay and costs are undesirable and that delay has deleterious effects, not only upon the party to the proceedings in question, but to other litigants. The Rule's objectives, as to the timely disposal of cases and the limitation of cost, were to be applied in considering ANU's application for amendment. It was significant that the effect of its delay in applying would be that a trial was lost and litigation substantially recommenced. It would impact upon other litigants seeking a resolution of their cases. What was a "just resolution" of ANU's claim required serious consideration of these matters, and not merely whether it had an arguable claim to put forward. A just resolution of its claim necessarily had to have regard to the position of Aon in defending it. An assumption that costs will always be a sufficient compensation for the prejudice caused by amendment is not reflected in r 21. Critically, the matters relevant to a just resolution of ANU's claim required ANU to provide some explanation for its delay in seeking the amendment if the discretion under r 502(1) was to be exercised in its favour and to the disadvantage of Aon. None was provided. 41 Also pertinent is an observation made in respect of litigants in person by the Court of Appeal of England and Wales in Tinkler v Elliott [2012] EWCA Civ 1289 at [32]: I accept that there may be facts and circumstances in relation to a litigant in person which may go to an assessment of promptness but, in my judgment, they will only operate close to the margins. An opponent of a litigant in person is entitled to assume finality without expecting excessive indulgence to be extended to the litigant in person. Those sentiments have been cited with approval by several judges of this Court, including me, as Perry J records, in turn citing them with approval, in Huang v University of New South Wales [2014] FCA 1337 at [26]. As her Honour there observed, there are observations to like effect to be found in the judgment of Gilmour J in O'Donoghue v Australian Information Commissioner (No 2) [2012] FCA 1152 at [9], in which his Honour stated in respect of an application for an adjournment by a self-represented litigant that: … there is a very real public interest in the timely disposition of matters before this Court, where the respondents, … are also entitled to a timely resolution of the case. 42 The Commissioner, no less than Mr Donoghue, is entitled to a timely resolution of the taxation appeal. In engaging the constitutionally necessary jurisdiction to determine judicially a taxation liability, Mr Donoghue engaged all of the practice and procedure of this Court in modern times. And that practice and procedure is informed by the overarching purpose and the need for parties to observe the same. It is likewise informed by the observations in respect of such a modern requirement made in the passages cited in Aon. 43 Mr Donoghue did not, in terms, seek an adjournment of the hearing of the taxation appeal, but that is necessarily to be inferred from the explanation he proffered in respect of his medical condition and the tenor of his correspondence both with the Australian Government Solicitor and the Court's registry. 44 It only comes to this. The Commissioner quite properly conceded that if the facts were ultimately to be found in the way that Mr Donoghue sets out in his affidavit dealing with residence and occupation, he would not be a resident of Australia and the assessments would necessarily be shown to be wholly excessive. 45 The income years in question are now at least a decade past, if not longer. Some of that decade may be regarded as referable to the absence of an understanding on the part of the Commissioner of Mr Donoghue's circumstances and related inability to form a view before 21 December 2011. Focusing, as I think I must, in respect of the period after the taxation appeal was instituted, some further part of the time elapsed is explained by what proved ultimately to be a misconceived challenge to the validity of the assessments. In July 2016, it was apprehended that medical considerations, even then, might intrude as to how Mr Donoghue's evidence would be received; hence the particular provision for the filing of related material and a review in February 2017. 46 The amount of tax is significant both for the Commissioner as well as for Mr Donoghue. This is hardly a trifling case. Mr Donoghue's absence of legal representation is not, as the Commissioner highlighted, explained explicitly in his material either by affidavit or in informal exchange. At most, it appears that he is reluctant to expend further funds on lawyers; perhaps there is more to it than that. 47 I do not see that Mr Donoghue is contemptuous of this Court's orders; rather, his attention to them is belated. His medical condition may very well intrude on this, in itself, as inferentially may his treatment, particularly the chemotherapy. 48 Of course, case management considerations are pertinent. There is a week of court time invested and which would be thrown away if I just adjourn the hearing, as opposed to dismissing the appeal for want of prosecution. But it is a very strong thing to dismiss for want of prosecution a reasonably arguable case brought by a man who is presently gravely ill, in respect of a large revenue debt, the existence of which would be completely negated in the event that that arguable case succeeds. So I am not persuaded that the case is one, notwithstanding the non-compliance mentioned and what I accept to be the importance of case management, for dismissal. I do not consider that would do justice between the parties. 49 Instead, I consider that Mr Donoghue has had sufficient time to file such evidence as he is able in respect of the merits of the taxation appeal. It is now for the Commissioner to file such material as he proposes and then to bring the case back for further case management. I propose in that regard to make a particular requirement in respect of the filing of evidence by Mr Donoghue in relation to his medical condition. I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.

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