Nugawela v Commissioner of Taxation

1. The application for leave to amend in terms of the proposed amended notice of appeal dated 30 April 2020 be dismissed.
2. The appeal be listed for hearing at 10.15 am on 31 July 2020 for half a day.
3. Orders 6 and 8 of the orders dated 6 March 2020 be vacated.
4. On or before 6 July 2020, the applicant must file and serve on the first respondent his outline of submissions.
5. On or before 20 July 2020, the first respondent must file and serve on the applicant his outline of submissions meeting the requirements stated in order 7 of the orders of 6 March 2020 and a chronology of the relevant events.
6. The applicant do pay the costs of the application to amend to be assessed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

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.