Panayi v Deputy Commissioner of Taxation

4 June 2016 Before: Gibson DCJ File Number(s): 2014/25986

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Headnote [This headnote should not be read as part of the judgment] The respondent brought proceedings against the appellant to recover penalties under Taxation Administration Act 1953 (Cth), Sch 1, s 269-20 on the basis that the appellant was director of a company which failed to remit amounts withheld from employee wages to the Commissioner of Taxation. At first instance, the appellant submitted that he was not a director at the relevant times; that the defence of illness in s 269-35 applied; and that the winding up of the company caused his liability to be remitted pursuant to the unamended form of s 269-30 as in force prior to 30 June 2012. The primary judge found that the appellant was, and knew he was, appointed and acting as a director at the relevant times and that his illnesses did not make it unreasonable to expect him to take part in company management. These conclusions relied in part on findings as to the appellant's commercial experience as a director, which were supported by evidence of ASIC's decision and reasons for disqualifying him from managing companies for four years. In addition, the primary judge held that s 269-30 applied in its amended form, which would prevent any remission of the appellant's liability. The issues in the appeal were: (i) whether the primary judge erred in admitting the ASIC decision and reasons into evidence in circumstances that enlivened this Court's power to grant a retrial; and (ii) whether the primary judge erred in applying the amended form of s 269-30. The Court held dismissing the appeal: In relation to (i): Evidence Act 1995 (NSW) s 59 did not apply in the absence of any objection as to hearsay. Seltsam Pty Ltd v McGuinness (2000) 49 NSWLR 262; [2000] NSWCA 29; Federal Commissioner of Taxation v SNF (Australia) Pty Ltd (2011) 193 FCR 149; [2011] FCAFC 74; Gray t/as Clarence Valley Plumbing Services v Ware Building Pty Ltd [2013] NSWCA 271; Perish v R (2016) 92 NSWLR 161; [2016] NSWCCA 89 applied. Evidence Act, s 69 applied because ASIC's decision and reasons formed part of the records of a "business" and the representations therein asserted facts extracted from documents lodged with ASIC or repeated facts asserted by liquidators or receivers and managers in their reports. In relation to (ii): An amendment that prospectively alters a person's unexercised opportunity to have a liability remitted does not engage the common law presumption that statutes do not have a retrospective operation. Abbott v Minister for Lands [1895] AC 425; Maxwell v Murphy (1957) 96 CLR 261; Colley v Futurebrand FHA Pty Ltd (2005) 63 NSWLR 291; [2005] NSWCA 223 applied. The amending legislation clearly and unambiguously provided that the amended form of s 269-30 applied to the appellant's liability, which had not ceased on 30 June 2012. Roche v Deputy Commissioner of Taxation [2015] WASCA 196 followed.