Nugawela v Commissioner of Taxation

1. The amended notice of appeal be struck out as to paras 1, 3-27 and 30-40.
2. The appeal be listed for hearing on a date to be fixed.
3. Costs of today be costs in the appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

COLVIN J: 1 Dr Nugawela is a bankrupt. He has brought an appeal in this Court in respect of a decision made by the Administrative Appeals Tribunal to dismiss six applications brought by him concerning objections to assessments. The Commissioner sought summary dismissal of the appeal on the basis that by reason of his bankruptcy he lacks standing to pursue the appeal, given its subject matter. 2 On 26 September 2018 I determined that the Commissioner's summary dismissal application should be dismissed: Nugawela v Commissioner of Taxation [2018] FCA 1458. I found that to the extent that Dr Nugawela seeks to challenge those aspects of the decision by the Tribunal that concern taxation liabilities provable in his bankruptcy, and are not of a character that they may affect his ongoing tax position, that he lacks standing to raise the matters identified in his amended notice of appeal, which is dated 7 May 2018. However, at the time of making that decision I noted that one of the appeal grounds concerned a complaint that the Tribunal dismissed the six applications without considering an application that was on foot by Dr Nugawela to seek a review of the decision by his trustee in bankruptcy to, in effect, abandon the six applications before the Tribunal. I found that to the extent that the appeal raised that issue it could not be said that the claim was without merit. As the only order sought by the Commissioner was the summary dismissal of the whole appeal I refused that application, but indicated that the matter should be listed for a case management hearing at which time consideration would be given to particular appeal grounds that should be struck out in light of my reasons on the summary judgment application. 3 After that the parties took no steps to convene the case management hearing in the appeal and the matter has been listed today for that purpose at the Court's own instigation. 4 Dr Nugawela brings to the attention of the Court the fact that he has an application for special leave to appeal on foot before the High Court. The High Court has indicated that it will shortly consider that application. The application for special leave to appeal seeks to challenge, in effect, the decisions that resulted in the sequestration orders as to his estate. Dr Nugawela asks for the case management hearing in this matter to be adjourned pending the outcome of that application for special leave. However, it seems to me that the short issue before the Court today about what grounds might be pursued in this appeal will not have consequences that require an adjournment until the outcome of that application is known. 5 The Commissioner seeks orders that these proceedings be stayed, pending the outcome of the application by Dr Nugawela seeking to review decisions by the trustee. Those proceedings are themselves stayed by orders that I made in May 2018 until compliance by Dr Nugawela with certain orders. In those circumstances, it seems to me that the short point that remains in this appeal ought be dealt with and is not itself dependent upon the circularity that might arise if there was a stay of these proceedings, in effect, while there is a stay of the application for review of the decision by the trustee. In particular, it might be important for Dr Nugawela to know whether he is able, in effect, through this appeal, to have matters before the Tribunal reinstated pending the outcome of the application to review the decision by the trustee. 6 Overall, I am not persuaded that there should be further delay in the formulation of the matters that will be the subject of this appeal. 7 As to the amended notice of appeal before the Court, it describes questions of law, findings of fact the Court will be asked to make on appeal, and grounds relied upon. Dr Nugawela acts on his own behalf and I do not read the notice of appeal with an overly critical eye. It is evident that the issue in relation to the adjournment, pending the application to review the decision by the trustee, is raised by the terms of what is described in the question of law in para 2 and the nature of relief that Dr Nugawela seeks, which is, in effect, an order by this Court that the six applications remain on foot before the Tribunal. In those circumstances it seems to me that the only paragraphs raising those issues are paras 2, 28 and 29 and the rest of the notice of appeal must be struck out as being inconsistent with the reasons that I gave on the summary judgment application. I will make orders to that effect. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Colvin.