Doumani v Commissioner of Taxation

Federal Court of Australia|2018-02-20|Before: Logan J

Orders 6 and 7 of the orders made in Federal Court Proceeding QUD371/2017 (Federal Court Proceeding) on 6 October 2017, and varied on 6 December 2017, be vacated.
The half day mediation listed in the Federal Court Proceeding on 17 April 2018 be vacated.
The hearing of the Federal Court Proceeding and Administrative Appeals Tribunal Proceeding (Tribunal reference 2017/4662-65 & 4668) (AAT Proceeding) in the week commencing 30 April 2018 be vacated.
The Federal Court Proceeding and AAT Proceeding are adjourned pending the outcome of the applicant's committal hearing in respect of the charge of unlawful bookmaking brought by the Queensland Police Service as described in paragraph 2 of the affidavit of Darren Mahony sworn 15 February 2018 (Committal Hearing).
The applicant provide the respondent notice of the outcome of the Committal Hearing within seven days of the determination of the Committal Hearing.
The applicant provide the respondent with particulars of all charges, as identified at paragraphs 2 and 3 of the affidavit of Darren Mahony sworn 15 February 2018, within seven days of his receipt of them.
The parties list the Federal Court Proceeding and Administrative Appeal Proceeding for case management hearing within 14 days of the determination of the Committal Hearing.
Liberty to apply.
Costs be reserved. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

LOGAN J: 1 A taxation appeal by Mr Jack Peter Doumani and a related review proceeding in the Administrative Appeals Tribunal are presently listed for hearing jointly, commencing on 30 April 2018. In conjunction with the case management that has culminated in the provision for that hearing, there is a mediation before a Registrar presently listed to occur on 17 April 2018. 2 The proceedings are at an advanced stage of preparation, albeit not quite as advanced as contemplated in earlier case management orders. In relation to that, there is an explanation offered by a Mr Graeme Gillard, a chartered accountant, in respect of the delay in the filing of Mr Doumani's forensic accounting material. 3 Part of that delay, and the occasion for an application made this morning, is a development in the course of an ongoing investigation by the Queensland Police Service in respect of alleged offences by Mr Doumani, both contrary to the Racing Act 2002 (Qld) and what might generically be termed fraud offences. Some of these alleged offences have been the subject of criminal proceedings from as far back as August 2015. But in February this year, as recently as last week, a new suite of alleged offences, entailing allegations of dishonest inducing of the delivery of property, of a value in excess of $100,000, were brought against Mr Doumani. 4 It was necessary for a case management hearing, which was held last week, to be adjourned until today, so as to enable greater clarity to be given to the new charges faced by Mr Doumani. Indeed, at the time of the case management hearing last week, he was in custody, which occasioned, as one might expect, some difficulty in his solicitors securing instructions to give the requisite precision. He is now on bail. 5 Mr Mahony, who is the solicitor acting for him in the criminal proceedings, has given a full account, by affidavit, of the various charges which Mr Doumani now faces. It is quite apparent from a study of these charges, as well as other detail given by Mr Mahony, that there is a very considerable overlap indeed between the subject matter of the criminal proceedings and what one might apprehend would be the evidentiary foundation of an endeavour by Mr Doumani to prove the assessments concerned excessive. The criminal proceedings are at the stage of unresolved committal proceedings in the Queensland Magistrates Court. 6 Against this background, Mr Doumani, by his counsel orally, this morning made application for the adjournment of the trial of the taxation appeal and related review proceeding. That application was, with respect, very fairly, one supported by the Commissioner. The parties recognised that the coincidence of criminal proceedings and taxation appeal and review proceedings does not, axiomatically, mandate any adjournment of the former in light of the latter; the Court has a discretion to exercise. 7 The considerations pertinent to the exercise of that discretion were, with respect, neatly collated by Pagone J last year in Obeid v Commissioner of Taxation [2017] FCA 1135. One has to be careful in considering an application such as this not to require an applicant for adjournment to get such precision as to the foundation for the application and the jeopardy concerned to subvert the applicant's right to silence. It is enough if it is inferentially likely, from surrounding circumstances, that there would be an embarrassment to an applicant by forcing the trial of the taxation proceedings in the face of contingencies which are apparent from the nature of criminal proceedings also abroad. That is certainly the case here. 8 In determining to support the application, the Commissioner is well seized with the possibility, given the judicial resources of the State, that an adjournment of the taxation appeal and review hearing pending disposition of the criminal proceedings might entail up to about two years' delay in the hearing and determination of the taxation proceedings. That takes into account both the lead times, post-committal, for bringing a case on to trial in the District Court, as well as the consequential affect in later finding time in this Court and the Tribunal to relist the matter for trial and hearing. 9 It transpires, further, that there is a taxation recovery proceeding in the Queensland Supreme Court, which has proceeded to judgment; and that, in respect of that judgment, the Commissioner has undertaken not to proceed to execution without notice to Mr Doumani's solicitors. That undertaking is one given between solicitors. 10 The position, then, is one which, in my view, is for an adjournment. In the event of later developments of any kind, the taxation appeal and review hearing can be brought back by either party, pursuant to liberty to apply. It would only visit costs on each of the parties to fix arbitrarily a bring-up date for a case management hearing. Instead, that is better left by way of provision for relisting after the disposition of the committal proceeding, or, as I have observed, on the initiative of either party, under liberty to apply. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.

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