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[2020] FCA 773
procedural. The application for leave to amend was dismissed with costs; the appeal was listed for hearing on 31 July 2020, orders 6 and 8 of 6 March 2020 were vacated, and filing deadlines were set for the...
The applicant wanted to add grounds to his appeal about the Tribunal's dismissal of six tax-review applications. The Court rejected the amendments. It said that the proposed distinction between four applications and 'mere initial lodgements' was not recognised by the Tribunal's procedure, that the Court could not change the Tribunal's reasons, and that the applicant had not shown a reason to revisit the Court's earlier ruling about which issues he had standing to raise. The Court also said the Tribunal's critical legal descriptions did not support the amendment application. The application was dismissed with costs, while the appeal itself was scheduled for a later hearing.
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1,670 words · generated 30/09/2026
This judgment concerns a procedural application within an existing Federal Court appeal, not the final determination of the underlying tax dispute. Patrick Allen Nugawela had brought six applications in the Administrative Appeals Tribunal (Tribunal) to review decisions by the Commissioner of Taxation concerning objections to assessments for the 2005 to 2010 tax years [1].
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A sequestration order was made in respect of Dr Nugawela's estate on 21 February 2017, while the Tribunal applications remained pending [2]. The trustee in bankruptcy did not pursue those proceedings [3]. Dr Nugawela challenged the trustee's approach in separate proceedings [4]. The Commissioner then applied to have the six Tribunal applications dismissed. The Tribunal dismissed them because it considered that Dr Nugawela lacked standing, as the debts formed part of his bankrupt estate and it was for his trustee to decide whether to pursue the applications. The Tribunal did not consider Dr Nugawela's contention that the applications should instead be adjourned while his challenge to the trustee's approach was underway [5].
Dr Nugawela appealed to the Federal Court, claiming reviewable error in the Tribunal's decision [6]. Earlier interlocutory decisions had limited the issues he could pursue. The Court found that he lacked standing to complain about the Tribunal's conclusion that he could not pursue the applications because of his bankruptcy. However, it found that he could complain about the Tribunal's failure to consider an adjournment pending his challenge to the trustee's decision [7]-[8].
The application decided in this judgment sought leave to amend the appeal grounds. The Court dismissed it with costs [13]. The appeal itself was not disposed of. The orders listed it for hearing on 31 July 2020 and set dates for the parties to file outlines of submissions.
The Court addressed several features of the proposed amendments.
First, Dr Nugawela proposed to characterise four of the Tribunal applications as “mere initial lodgements”, which he said could not be matters on which the trustee could make a decision [9]. The Court rejected this characterisation. Its stated reason was procedural: the Tribunal's procedure did not recognise an initial-lodgement stage that was distinct from the commencement of an application [9]. The proposed distinction therefore did not provide a basis for the amendment.
Second, the proposed notice sought relief in terms that would amend the Tribunal's reasons. Colvin J stated directly that the Court could not grant relief in those terms [10]. The judgment does not elaborate on the broader scope of appellate relief. Its reasoning is confined to the form of relief proposed in this application.
Third, Dr Nugawela relied on matters concerning how the Tribunal came to consider standing and his dealings with the trustee [11]. The Court treated these as matters that had already been considered in deciding which grounds he could pursue and whether he had standing to raise them. It was not satisfied that they justified revisiting the earlier interlocutory decision [11]. The judgment therefore distinguishes between raising further submissions about previously considered issues and establishing a basis to reopen the Court's earlier ruling.
Finally, Dr Nugawela objected to the Tribunal's descriptions of the applications as, among other things, “frivolous, vexatious, misconceived” and an “abuse of process”. He said these descriptions were personally and professionally hurtful and might affect other Tribunal applications [12]. The Court explained that such expressions invoked established legal principles and were commonly used to describe legal reasons for refusing to let an application proceed to a final hearing. It said they were not personal attacks. More importantly for the application before it, those descriptions did not concern the proposed amendment about the nature of the Tribunal applications and were not a reason to allow it [12].
Taken together, the proposed grounds either lacked merit on the procedural premise advanced, sought relief the Court said it could not grant, attempted to reopen issues already addressed, or were unrelated to the amendment actually sought.
The judgment does not purport to change the law or announce a broad new rule. It records and applies procedural conclusions in the course of managing this particular appeal.
Before this decision, the appeal was confined by the Court's earlier interlocutory rulings. As summarised in this judgment, Dr Nugawela could not pursue a challenge to the Tribunal's conclusion that bankruptcy prevented him from pressing the six applications, but could pursue the complaint that the Tribunal failed to consider adjourning them pending his challenge to the trustee's decision [7]-[8]. This case did not decide that remaining ground on its merits.
The decision left that earlier procedural position in place. It refused the proposed amendments and ordered the appeal to proceed to a listed hearing [13 and orders]. The reasons do not set out a general test for amendments to appeal grounds, nor do they analyse statutory provisions governing the Tribunal's procedure or appellate jurisdiction. Accordingly, the safest account of its significance is narrow: on the facts and proposed pleading before it, the Court rejected the asserted “initial lodgement” distinction, declined relief that would alter the Tribunal's reasons, and did not reopen its earlier interlocutory ruling.
The judgment's observations about the Tribunal's critical language should also be read in context. Colvin J addressed that language to explain why it did not justify these amendments [12]. The decision is not a general ruling on when a tribunal may use particular expressions, or on whether such language may be challenged in another procedural setting.
At [9], the Court said: “The relevant procedure before the Tribunal does not recognise any process by which there may be some form of initial lodgement that is not the commencement of an application.” In plain English, the Court did not accept that four of the matters could be treated as preliminary lodgements outside the Tribunal's application process. It treated them as applications under the procedure it was considering.
At [10], the Court said: “Relief in those terms cannot be granted by this Court.” The proposed relief would have changed the Tribunal's reasons. The judgment states that the Federal Court could not provide that form of relief in this proceeding.
At [11], the Court said it was “not satisfied” that the applicant's further matters provided a basis to revisit its earlier interlocutory decision. This explains the procedural effect of the earlier rulings: the amendment application was not treated as an opportunity to relitigate issues already considered.
At [12], the Court described the Tribunal's phrases as expressions invoking established legal principles and commonly used to explain why applications should not proceed to final hearing. The Court also said the phrases were not personal attacks. It then connected that response to the issue before it: the language did not relate to the amendment about the nature of the applications and therefore did not justify leave.
The decision is most directly relevant to a procedural setting with these features: an appeal from a Tribunal decision is already underway; earlier interlocutory orders have restricted the grounds that may be pursued; an applicant seeks to amend those grounds; and the proposed amendment either relies on a procedural distinction the relevant Tribunal process does not recognise or requests relief framed as an alteration of the Tribunal's reasons [7]-[11].
It may also be relevant where an amendment application relies on complaints about the tone or terminology of the Tribunal's reasons, but those complaints do not connect to the substantive amendment being sought [12]. The Court treated relevance to the amendment as important: the applicant's concern about the words used by the Tribunal did not establish a reason to permit amendments concerning whether four matters were applications or initial lodgements.
The judgment should not be read as deciding that every amendment seeking to revisit an interlocutory decision must fail, or that every request concerning Tribunal reasons is beyond the Court's power. The reasons address the specific proposal before Colvin J. They do not identify a general amendment test or discuss alternative forms of appellate relief.
The supplied judgment gives no information about later judicial treatment of Nugawela (No 3). It therefore cannot establish whether later courts followed, distinguished, applied, or otherwise considered this decision.
The judgment itself refers to two earlier decisions in the same matter: Nugawela v Commissioner of Taxation [2018] FCA 1458 and Nugawela v Commissioner of Taxation (No 2) [2019] FCA 512 [7]-[8]. Colvin J summarised those decisions as addressing standing and the grounds available in the appeal. The judgment does not provide a broader survey of authority or report how other courts treated those decisions. Any account of subsequent treatment would require sources beyond the judgment provided.
The decision did not determine the merits of the appeal ground that the Tribunal failed to consider adjourning the six applications pending the outcome of Dr Nugawela's challenge to the trustee's approach. The reasons describe that as the ground permitted to proceed after the earlier interlocutory decisions [7]-[8], and the orders listed the appeal for a later hearing.
The reasons do not identify the detailed provisions governing the Tribunal's application process. They state only that the relevant procedure did not recognise an initial lodgement separate from commencement of an application [9]. The judgment therefore leaves unaddressed how that procedural conclusion might apply under a different Tribunal procedure or on materially different facts.
Nor does the judgment analyse the precise jurisdictional basis for the Court's statement that it could not grant relief amending the Tribunal's reasons [10]. It resolves the point at the level necessary for this amendment application. The decision also does not decide any separate challenge to the Tribunal's descriptions of the applications; it finds only that those descriptions were not a reason to permit the amendments proposed here [12].
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COLVIN J: 1 Dr Nugawela brought six applications in the Administrative Appeals Tribunal to review decisions made by the Commissioner concerning objections to tax assessments for the years 2005 to 2010. 2 A sequestration order in respect of Dr Nugawela's estate was made on 21 February 2017. At that time the six applications were still to be determined. 3 Dr Nugawela's trustee in bankruptcy did not pursue the proceedings in the Tribunal. 4 Dr Nugawela objected to the stance taken by his trustee and brought proceedings in this Court in which he sought to challenge the trustee's decision not to proceed with the review applications in the Tribunal. 5 On the application of the Commissioner, the six applications in the Tribunal were dismissed on the basis that Dr Nugawela had no standing to maintain the applications as they concerned debts that formed part of his bankrupt estate and it was for his trustee in bankruptcy to determine whether to pursue the applications. However, the Tribunal did not consider a contention by Dr Nugawela that the six applications should be adjourned rather than dismissed given that he had proceedings on foot to challenge the approach taken by the trustee in not pursuing the six applications in the Tribunal. 6 Dr Nugawela brought an appeal in this Court in which he claimed that there was reviewable error in the decision of the Tribunal to dismiss the six applications. 7 The Commissioner sought summary dismissal of the appeal on the basis that Dr Nugawela lacked standing as a bankrupt to prosecute the appeal. On the summary dismissal application, I found that Dr Nugawela lacked standing insofar as he sought to complain about the Tribunal's decision that he could not pursue the proceedings in the Tribunal by reason of his bankruptcy. However, I found that he had standing to raise a complaint about the Tribunal's failure to adjourn the six applications pending the outcome of his challenge to the approach being taken by his trustee concerning the objections to the tax assessments: Nugawela v Commissioner of Taxation [2018] FCA 1458. In effect, it might be said that an adjournment would preserve the subject matter of Dr Nugawela's challenge to the decision by his trustee in bankruptcy. Therefore, that was a matter that he had standing to raise and it was arguable that there was error by reason of the Tribunal's failure to consider that contention. 8 In the result, the application to summarily dismiss the whole of the appeal was not successful. However, the only grounds of review that were allowed to be pursued in the appeal concerned the complaint about the Tribunal's failure to consider Dr Nugawela's contention that the Tribunal proceedings should be adjourned pending his challenge to the trustee's decision not to pursue the objections to the tax assessments: Nugawela v Commissioner of Taxation (No 2) [2019] FCA 512. 9 The present proceedings have been on foot for over two years. Dr Nugawela now brings an application to amend his grounds of appeal against the Tribunal's decision. He claims that four of the applications before the Tribunal were, as he describes them, 'mere initial lodgements' and were incapable of being applications about which the trustee in bankruptcy could make any decision. That claim has no merit. The relevant procedure before the Tribunal does not recognise any process by which there may be some form of initial lodgement that is not the commencement of an application. 10 Dr Nugawela's application to amend also proposes relief in a form that would amend the reasons of the Tribunal. Relief in those terms cannot be granted by this Court. 11 Dr Nugawela also makes submissions in support of the amendment application concerning the circumstances in which the Tribunal came to consider whether he had standing to proceed with the six applications and his dealings with his trustee. Those matters are advanced to support claims that by some means or another the Tribunal was in error in its finding that the six applications could not be pressed by Dr Nugawela by reason of his status as a bankrupt. I have already considered whether there is merit in grounds of review that seek to challenge those matters and whether Dr Nugawela has standing in this Court to advance an appeal challenging those matters. I am not satisfied that the matters referred to by Dr Nugawela provide any basis upon which I should revisit my earlier interlocutory decision as to those matters. 12 Finally, Dr Nugawela expresses concern about the language that was used by the Tribunal at various points in its reasons when it described the six applications as being frivolous, vexatious, misconceived, lacking in substance, without reasonable prospects of success and an abuse of process. He submits that these descriptions were personally and professionally hurtful. He also says that the existence of those statements, if left unchallenged, may affect other applications in the Tribunal. The descriptions used by the Tribunal invoked established legal principles and are expressions that are commonly adopted to describe legal reasons why applications should not be allowed to proceed to a final hearing. They were not personal attacks on Dr Nugawela and he should not consider them to be so. In any event, those matters are not relevant to the application for leave to amend in the terms proposed by Dr Nugawela which concern only the contention about the nature of the applications in the Tribunal. They are not a reason why the amendments sought by Dr Nugawela should be allowed. 13 For those reasons, Dr Nugawela's application should be dismissed with costs. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Colvin.
Nugawela
Commissioner of Taxation
The application for leave to amend was dismissed with costs; the appeal was listed for hearing on 31 July 2020, orders 6 and 8 of 6 March 2020 were vacated, and filing deadlines were set for the parties’ submissions.