Whiteman v Deputy Commissioner of Taxation

Whiteman v Deputy Commissioner of Taxation - [2022] FCA 975 - FCA 2022 case summary — Zoe

[3]

The events leading to the taxation assessments 5 The appellant was the subject of a sequestration order during the period 2010-2013. In that period, the appellant lodged income taxation returns for the financial years 2010, 2011 and 2012, in each case reporting income by way of salary or wages for sums less than $42,000. 6 For the four financial years ending 30 June 2013 to 2016, the appellant failed to lodge taxation returns or to declare any income. 7 In 2016, documents were obtained by officers of the Australian Taxation Office (ATO) during an "access without notice" attendance on premises associated with the appellant and various companies. During this attendance a substantial quantity of records and documents were taken and thereafter evaluated by officers of the ATO. The evidence differs as to whether the documents were removed, or copied. 8 On 30 March 2017, an authorised officer of the Commissioner prepared a document titled "Evasion Opinion". That document stated that the appellant and his tax agent had engaged in evasion of tax for the years 30 June 2010, 2011 and 2012; that the documents obtained showed that the appellant had acted as a de facto director of five corporations, three of which acted as trustees of certain trusts; that the appellant had ultimate control of those corporations; and that the appellant had controlled those corporations including at times when he remained an undischarged bankrupt and had been disqualified from doing so. The amount of taxation shortfall for the three years in question was identified as $1,005,020. 9 On 31 March 2017, amended assessments were issued to the appellant for the years ended 30 June 2010 to 2012, and default assessments were issued for the years ended 30 June 2013 to 2016 on the basis that the appellant had failed to furnish returns for those years. Furthermore, administrative penalties were imposed on the appellant for intentional disregard of taxation laws, and for the failure to provide documents. A later decision of the Commissioner on the appellant's objections dated 15 January 2021 records the tax payable by the appellant for each of the seven relevant years in sums totalling $4,004,416.40, and records administrative penalties for the seven years in sums totalling $3,500,015.85.

[4]

The proceedings giving rise to the judgment debt owing by the appellant 10 On 3 April 2017, the Commissioner commenced six separate proceedings in this court, being proceedings against the appellant, one other individual, and several corporations to secure the recovery of taxation debts. On that date, Davies J made a series of ex parte freezing orders, together with orders for the appointment of provisional liquidators over the corporations, three of which conducted either an accounting, advisory or legal practice. On 27 April 2017, Davies J gave reasons for judgment in relation to the orders of 3 April 2017: Deputy Commissioner of Taxation v A & S Services Australia Pty Ltd [2017] FCA 437. Her Honour referred to settled principles that fraud or misconduct were significant factors relevant to an exercise of the court's discretion to wind up corporations on the just and equitable ground, and held that the Commissioner had established a prima facie case in relation to material elements of the claims. 11 The appellant lodged documents dated 2 June 2017 purporting to be an objection to the assessments, but these were determined to be invalid by the Commissioner. 12 On 14 June 2017, Davies J made orders to wind up each of the corporate defendants: Deputy Commissioner of Taxation v A & S Services Australia Pty Ltd (No 2) [2017] FCA 663. 13 The Commissioner then applied for summary judgment against the appellant upon the amended and default assessments. On 10 August 2017, the appellant filed an interlocutory application seeking a stay of the proceedings, doing so on the basis of matters contained in an affidavit made by the appellant's solicitor as follows: (1) the Commissioner was aware the debtor was unable to pay the full amount of the liability under the amended assessments; (2) the appellant's solicitor reasonably expected if judgment was given the Commissioner would apply for the sequestration of his estate; (3) a trustee appointed to the appellant's estate would be unlikely to prosecute the appellant's objections; and (4) if a trustee failed to adopt the action taken by the debtor of objecting to the assessments such action would be deemed abandoned. By an affidavit filed on 11 August 2017, the appellant deposed that his only asset in Australia was a motor vehicle with a value of $3,000. 14 On 11 August 2017, Davies J heard argument on the applications for summary judgment and a stay of the proceeding to which the appellant was a party. 15 The appellant lodged further documents with the Commissioner dated 13 August 2017 purporting to be an objection to the assessments, but these were also determined by the Commissioner to be invalid. 16 On 18 August 2017, Davies J made orders refusing the appellant's application for a stay, and gave summary judgment against the appellant in the amount of $8,453,699.99 plus costs: Deputy Commissioner of Taxation v Whiteman [2017] FCA 951. The judgment amount included the administrative penalties that had been imposed upon the appellant. For the purposes of s 40(1)(g) of the Bankruptcy Act, the judgment given by Davies J was a final judgment: s 40(3). The appellant did not seek leave to appeal orders of Davies J at that time. A subsequent application filed by the appellant on 16 August 2021 for an enlargement of time within which to appeal was dismissed on 18 May 2022 on the ground that the appellant's trustee in bankruptcy had elected to discontinue the application: Whiteman v Deputy Commissioner of Taxation [2022] FCA 568.

[5]

The creditor's petition, further objections, and applications for review 17 On 10 October 2018, the bankruptcy notice was issued by the Official Receiver. The notice was amended on 9 October 2019 upon the Commissioner obtaining an order for substituted service of the notice. Service of the bankruptcy notice on the appellant was effected on 29 October 2019 upon compliance by the Commissioner with the order for substituted service. The appellant did not comply with the notice, and the date of the appellant's act of bankruptcy was noted by registrar in orders of 3 September 2021 to be 19 November 2019. 18 On about 31 March 2019, the appellant lodged further objections in respect of all years of income from 1 July 2009 to 30 June 2016 and against each of the notices and amended assessments issued on 31 March 2017. On 10 May 2019, the Commissioner notified the appellant that these objections were invalid. 19 On 19 May 2020, the Commissioner presented the petition. 20 On 8 September 2020, the appellant filed an application with the Administrative Appeals Tribunal (Tribunal) seeking to challenge the relevant assessments. That application was dismissed by the Tribunal on the basis that it had no jurisdiction to conduct the review. 21 On 25 September 2020, the appellant sought to invoke s 14ZYA of the Taxation Administration Act 1953 (Cth) (Administration Act), requiring the Commissioner to make an objection decision in accordance with the provisions of that Act. On 14 December 2020, the appellant supported his request under s 14ZYA by written submissions. 22 On 9 December 2020, a registrar made an order for substituted service of the creditor's petition, deeming service to be effected on 5 January 2021 upon compliance with the conditions in the order. 23 On 27 January 2021, solicitors acting for the appellant in the bankruptcy proceeding in the court below filed a notice of acting. Other solicitors subsequently acted for the appellant from time to time during the course of the proceeding. 24 On 15 January 2021, the Commissioner made a decision on the s 14ZYA request and in doing so approved the appellant's application for more time in which to lodge his objections. However, the Commissioner's decision was that each of the objections not be allowed. On the same date, the Commissioner furnished the appellant with a detailed statement of reasons for the decision. 25 On 22 January 2021, the appellant made another application to the Tribunal, on this occasion seeking merits review of the decision not to allow his objections against the amended assessments. The Commissioner subsequently received notification from the Tribunal of the appellant's application on 8 April 2021. 26 On 5 March 2021, the appellant made an affidavit setting out grounds on which he opposed the making of a sequestration order. The affidavit was prepared and filed by solicitors acting on the appellant's behalf. A further shorter affidavit of 16 March 2021 was also filed. I will refer to the tenor of those affidavits later in these reasons. 27 On 14 April 2021, the appellant's solicitors filed grounds of objection, relying on the contents of the appellant's affidavits of 5 and 16 March 2021, including medical evidence that was referred to and annexed to the affidavit material. Further, by the notice of objection the appellant sought to adjourn the hearing of the petition pending the hearing and determination of his application before the Tribunal. There was no claim that the appellant was solvent. 28 On 29 April 2021, a registrar ordered that the life of the petition be extended to 24 months from the date of presentation, thereby extending the petition to 19 May 2022. 29 On 6 May 2021, the Commissioner filed documents with the Tribunal pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth). The primary judge accepted evidence of the solicitor for the Commissioner that there were at least 115 of these documents comprising 3,611 pages, together with a supplementary bundle comprising a further 80 pages to which I refer below. The primary judge was satisfied on the evidence that the appellant had been added to a file sharing application and was granted access to the documents in May 2021. 30 In relation to his application before the Tribunal, the appellant engaged a tax lawyer, Mr George Kolliou of AG Tax Lawyers. Correspondence took place between Mr Kolliou and the solicitors for the Commissioner in relation to whether the documents before the Tribunal were complete. Mr Kolliou wrote a considered letter dated 13 July 2021 to the solicitors for the Commissioner setting out a number of propositions directed to whether the documents filed with the Tribunal were complete. In addition to claiming that the documents were incomplete in several respects, Mr Kolliou stated that the documents should be filed in a more legible form, stating that the documents that he possessed contained unusually large margins, and that their contents were thereby shrunk, making them difficult to read. 31 On 1 September 2021, the solicitors for the Commissioner wrote to the appellant's tax lawyer, responding seriatim to the issues raised. A small number of omissions were accepted, and inadvertent errors identified, which resulted in the Commissioner re-filing the documents with the Tribunal. As for the claim that the documents filed had wide margins, this was disputed by reference to the Commissioner's copy, but the solicitors undertook to provide the appellant's representative with a further copy along with the supplementary documents. 32 On 2 September 2021, the solicitors for the Commissioner sent a download link to Mr Kolliou for the documents that were re-filed with the Tribunal. 33 A number of dates were fixed for the hearing of the petition, which was adjourned from time to time. The primary judge found that over the period 4 February to 19 August 2021, solicitors acting tor the appellant had filed or made applications to adjourn the hearing of the petition. These applications had been supported by several affidavits. His Honour referred to one such affidavit made by the appellant's solicitor on 15 July 2021 to which was exhibited two documents, the first being a letter dated 14 July 2021 from a psychiatrist addressed "To Whom It May Concern" supporting the appellant's application to adjourn the hearing of the petition and otherwise stating, upon an assessment made on that date, the psychiatrist considered the appellant "has anxiety and stress in relation to life stresses and has had difficulty preparing the case due in the Federal Court on the 15th July 2021." His Honour referred to a second document, which took the form of a chronology, describing the appellant's life history in a narrative form but his Honour held that the matters contained in it were not otherwise proved. 34 The hearing before the registrar took place on 2 and 3 September 2021. The primary judge stated that the parties were legally represented at that hearing. Counsel before me agreed that an application was made to the registrar by the appellant for an adjournment of the hearing, which was refused. On 3 September 2021, the sequestration order was made, and a further order made which stayed the operation of that order for seven days.

[8]

The hearing of the review on 7 October 2021 39 The hearing of the review on 7 October 2021 took place remotely using video and audio links. The appellant was self-represented. The Commissioner and the trustee were each represented by counsel. Counsel for the trustee made no submissions. 40 In addition to the affidavit material that was before the registrar, and updated affidavits of debt and search filed by the Commissioner on 7 October 2021, the following affidavits were received into evidence with leave, which was not opposed by either party - (a) an affidavit of the appellant dated 9 September 2021; (b) an affidavit of an officer of the Commissioner, George Khouri, sworn and filed 1 October 2021; and (c) an affidavit of a solicitor for the Commissioner, Jacqueline Alexandra Mills, sworn and filed 1 October 2021. 41 I will identify some of the features of the affidavit material that was before the primary judge. 42 By his affidavit of 5 March 2021, which was prepared and filed by the appellant's then solicitors, the appellant deposed to medical conditions that he had suffered. The appellant produced as annexures to his affidavit reports from treating medical practitioners. The appellant's claimed conditions included attention deficit hyperactivity disorder (ADHD), hypothyroidism, and in 2016 a ST elevation infarction that led to bypass surgery. According to a letter from his cardiologist dated 2 June 2017, the appellant recovered well from his cardiac surgery. As to the ADHD, the medical opinion was that the appellant had suffered this condition since childhood, and it resulted in impairments to his organisational capacity, short and long-term memory, and cognitive capacity. A medical report from a treating general practitioner, Dr Shelley Gray, dated 3 January 2018, and amended on 6 July 2020, stated that the appellant was being medicated, having resumed medication in December 2016 following cardiac surgery, with notable benefit. As to the hypothyroidism, the same medical report stated that this was diagnosed in 2015, and that hypothyroidism produces cognitive dysfunction and memory impairment. The report also stated that the appellant suffered from anxiety and depression. The report painted a picture of the appellant lacking organisational skills, and being reliant upon others to assist with detail. 43 The appellant also produced a report from a psychiatrist, Dr David Tofler, dated 12 February 2021. That report referred to the appellant's difficulty in paying attention to detail, and to significant problems with attention and concentration, leading to distractibility and disorganisation. The report also referred to a significant tragedy that the appellant endured in 2019, namely the death of his daughter by suicide. The report strayed into recording a history given in relation to the appellant's claims that he did not act as a de facto director of companies, but worked as a business development manager who was dependent upon other staff. The report concluded by stating that the appellant would benefit from further treatment for his ADHD. 44 By his affidavit of 5 March 2021, the appellant claimed that as a result of the appointment of liquidators to the companies, which I assume are the companies placed into liquidation by the orders of Davies J on 3 April 2017, documents were seized by the liquidators, and had never been identified or disclosed to him. A theme of many of the claims made by the appellant in his affidavit was that he was denied the opportunity in the earlier Federal Court proceedings to meet the evidence that was put forward, and to refute the allegations that he had been a de facto director of the companies in question. The appellant also claimed that he had been denied the material necessary to prepare his objections to the taxation assessments. The appellant claimed that by reason of his undiagnosed medical conditions, he did not have the "mens rea" to engage in the frauds that had been alleged against him. The appellant claimed that two other persons had committed fraud, with the necessary implication that he was not involved with or responsible for the fraud. 45 There were many claims in the appellant's affidavit of 5 March 2021 directed to making a collateral challenge to the appointment of the provisional liquidators to the relevant companies, and the ex parte nature of the original application, although I do note that the appellant denied that he was a de facto director of these companies. The appellant claimed that he was never served with the notices of assessment, or amended assessment, or the results of the audit that had been undertaken. There were other claims in the appellant's affidavit that were in the nature of conclusory accusations, such as abuse of process, breach of privacy laws, repeated claims of a miscarriage of justice in relation to the appointment of provisional liquidators to the relevant companies, claims that the Commissioner had erred by relying on information contained in reports of the provisional liquidators, which itself was the product of information supplied to the liquidators by an officer of the ATO, thereby challenging the independence and reliability of the information, claims that the ATO had evaded model litigant obligations, and claims amounting to allegations of bad faith. 46 As to the appellant's application to the Tribunal to review the rejection decision made on 15 January 2021 in relation to the appellant's objections to the assessments of taxation, the appellant claimed that he had established a prima facie case, and believed that he had a reasonable chance of success should he be able to proceed to challenge the assessments in the Tribunal. The appellant claimed that the taxation returns for the 2010 to 2012 income years which had been lodged by his trustee in bankruptcy should stand, and he expressed confidence that he would be able to demonstrate to the Tribunal that his role with the relevant companies was that of an employed business development manager, and that he did not act as a de facto director of the companies. In relation to the income years 2013 to 2016, the appellant claimed that he was confident of calculating his taxable income for those years should he be able to gain access to his personal records. 47 The appellant's affidavit made 9 September 2021 referred to the documents that the Commissioner had supplied for the purposes of the proceeding in the Tribunal. The appellant stated that a significant number of documents had been omitted, and reproduced the items referred to in the letter of his tax lawyer, Mr Kolliou, dated 13 July 2021 to which I referred earlier. He also referred in his affidavit to the claim that the documents that had been produced by the Commissioner were extremely difficult to read by reason of having their contents shrunk. The appellant set out his account of failing to receive the relevant taxation assessments when they were originally issued in March and April 2017, and of his attempts to lodge valid objections in about July and August 2017. The appellant made a number of high-level conclusory allegations directed to the conduct of the Commissioner, the tenor of which was that the conduct of the Commissioner had impaired the appellant's ability to defend himself. The appellant referred to the supplementary documents that the Commissioner made available for download on 1 September 2021, which was the day before the hearing of the petition before the registrar. The appellant stated that the timing did not allow for the review of the documents, or the preparation of any meaningful response. The appellant stated in his affidavit in two places that the documents provided by the Commissioner consisted of some 3,600 documents in all, and not just the missing documents. 48 Also in his 9 September 2021 affidavit, the appellant referred to his ongoing medical issues, and claimed that these had contributed to his inability to address the evidence that he had been a de facto director of the relevant companies that was relied upon by the Commissioner and to address submissions that the court on hearing the petition should go behind the judgment of Davies J. The appellant referred to witness documents that he had lodged with the Tribunal, but did not produce them. By his affidavit he submitted that he had demonstrated substantial and arguable grounds for a defence to the Commissioner's claims. He foreshadowed that he could now subpoena documents to support his defence. The appellant reiterated claims that fraud had been committed by others, and high-level claims against the Commissioner in relation to the conduct of the matter that were tantamount to allegations of bad faith. 49 The appellant further stated in his 9 September 2021 affidavit that in 2013 he started working nights and weekends for a client who gave him a small salary and permitted him to draw from $10,000 to $15,000 per month as income for the next three years. The appellant stated that he had asked his accountant many times to prepare his taxation returns, and despite the appellant's best efforts, this was not done. 50 I referred earlier to the affidavit of Mr Khouri, an officer of the ATO, sworn 1 October 2021 which was before the primary judge. Before giving leave to the Commissioner to rely on the additional affidavits, the primary judge explained to the appellant the requirement for leave, and gave the appellant an opportunity to make submissions. The appellant did not oppose leave being given. The main point of that affidavit was that Mr Khouri undertook some calculations of the appellant's outstanding taxation liabilities and general interest charge, but excluding Medicare levies and administrative penalties, on alternate hypotheses that the appellant had taxable income of $35,000, $45,000, and $55,000 for each of the income years 2013 to 2016, for which he had failed to file returns. The totals for the four years were calculated as follows - Taxable income for 2013 to 2016 Total tax and general interest charge $35,000 $21,993.82 $45,000 $42,527.48 $55,000 $64,921.62

[9]

51 The premise for the calculations was a statement by the appellant in his objection submissions to the Commissioner of 14 December 2020 that from 2013 to 2016 his "wage" was from $35,000 to $55,000 per annum. That submission broadly corresponded to the appellant's affidavit evidence to which I referred above of income that he received during these years from a client of $10,000 to $15,000 per month, although the monthly figures referred to in the affidavit would result in a much higher annual income than that referred to in the submissions. 52 Finally, as to the affidavits that are material to the issues on appeal, the primary judge gave the Commissioner leave to rely on the affidavit of the solicitor for the Commissioner, Jacqueline Alexandra Mills, sworn and filed 1 October 2021 to which I referred earlier. That affidavit annexed the correspondence passing between the solicitors for the Commissioner and the appellant's tax lawyer relating to the documents filed with the Tribunal, including by annexing the indices to the documents to which I referred above. 53 After receiving the evidence on the review, the primary judge heard from the parties on the basis that it was a hearing de novo in which the Commissioner had the carriage of the application, but that it was for the appellant to persuade the court that it should exercise its discretion under s 52(2) of the Bankruptcy Act not to affirm the sequestration order. During the course of the hearing, the appellant addressed the primary judge on a range of issues, and stated that he did not believe that he owed any money to the Commissioner, and claimed that he was solvent. In relation to the appellant's "wages" for the years 2013 to 2016, the appellant stated that it was his understanding the taxation had been "drawn" from the wages, by which I would understand the appellant claimed that taxation had been withheld, but stating that he could not prove anything because he did not have any material in that regard. At the conclusion of the hearing, his Honour reserved his decision.

[10]

The primary judge's reasons 54 The primary judge dismissed the application for review and affirmed the sequestration order. The following is a summary of the primary judge's path of reasoning - (a) The Commissioner had adduced proof of the matters required by s 52(1) of the Bankruptcy Act, and had thereby established a prima facie entitlement to the making of a sequestration order. (b) His Honour referred to the centrality of solvency in the law of bankruptcy. His Honour noted that the appellant had made some submissions generally assertive of his solvency, but stated that no evidence had been adduced by the appellant as to his solvency, and the court was otherwise not satisfied of his solvency. (c) His Honour framed the question on the review as whether there was other sufficient cause why a sequestration order ought not to be made. His Honour addressed the appellant's claim that the court should go behind the judgment debt and have regard to the fact that there was an application on foot before the Tribunal for merits review of the objections to the assessments that underpinned the judgment. (d) The primary judge held that there was no reason to look upon the judgment that had been obtained with suspicion, as might be the case when the judgment was obtained by default or by consent. Otherwise His Honour found no sufficient reason to go behind the judgment, which was based upon certificates produced on the application for summary judgment as prima facie evidence of a tax-related liability that was due and payable: see, Deputy Commissioner of Taxation v Whiteman [2017] FCA 951 at [4]-[8] (Davies J). (e) The primary judge referred to the evidence of the appellant's medical conditions, noting that the appellant had stated to his Honour during submissions that he had recently recovered from them, and referred to the extensive terms in which the appellant had deposed to the manner in which business records had been seized, and were no longer available to him. (f) The point on which the primary judge's reasons turned was that his Honour held at [73], that even if it was assumed in the appellant's favour that he was able to discharge the burden that he had before the Tribunal to demonstrate that the assessments were excessive, there was no rational basis for concluding that his taxation liability would be less than the $20,000 amount prescribed as the statutory minimum that was applicable to the petition. See: Bankruptcy Act, s 44; Bankruptcy Regulations 1996 (Cth), r 4.02AA, as inserted by the Coronavirus Economic Response Package Omnibus Act 2020 (Cth) and amended by the Corporations and Bankruptcy Legislation Amendment (Extending Temporary Relief for Financially Distressed Businesses and Individuals) Regulations 2020 (Cth), which was in force until the end of 31 December 2020, during which period the petition dated 19 May 2020 was presented. His Honour held that the supposed merit of the application to the Tribunal had not been made out for the distinct purpose of demonstrating whether, for other sufficient cause, the petition should be dismissed pursuant to s 52(2)(b) of the Bankruptcy Act. Because his Honour's reasoning at [73] was the subject of challenge on appeal, I set it out - Otherwise, I accept the submission of Counsel for the applicant that in the hearing and determination of his application before the Tribunal for the review of the objection decision, the debtor is confined to the ground stated in his taxation objection and bears the burden, relevantly, of proving that the assessment is excessive or otherwise incorrect and what the assessment should have been: TAA, s 14ZZK; Commissioner of Taxation v Rigoli (2013) ATC ¶20-407, [10] (Pagone J); Rigoli v Commissioner of Taxation (2015) 96 ATR 19, [20], [31]. The debtor submitted he had filed the application for an extension of time in which to appeal because of advice obtained that he had negligible prospects of discharging that burden of proof in his application before the Tribunal. Indeed, his evidence, such as it was had been expressed in argumentative or conclusory terms and providing opinions he was not able to provide or which, in any event, had not been supported by direct evidence of the matters necessary for those opinions to be made out. If it was assumed in the debtor's favour that he was able to discharge the burden before the Tribunal that the several amended assessments were excessive, I accept there is no rational basis for a conclusion his tax liability would be less than the statutory threshold of $20,000 upon which the petition could be presented. Again, upon the debtor's evidence and submissions above, he has known since at least May 2021 that he would need to positively show what his taxable income was for each relevant year. No attempt has been made to adduce this evidence for the purposes of this application. Absent such proof, the applicant could not demonstrate the amended assessments were excessive: TAA, s 14ZZK. The supposed merit of the application to the Tribunal has accordingly not been made out for the distinct purpose of demonstrating whether for other sufficient cause the petition should be dismissed pursuant to par 52(2)(b) of the Act. Further, no attempt was made to demonstrate the supposed merit of the application for an extension of time in which to appeal from the orders of Davies J made in 2017 or the merit of any grounds of appeal. (g) The primary judge further held that discretionary considerations militated against the exercise of the court's discretion, or that there was other sufficient cause not to make a sequestration order. His Honour referred to the legislative policy favouring the revenue against the taxpayer, which I will address later. His Honour held that it was not irrelevant that the appellant had not sought to test the evidence that was before Davies J in the proceedings that led to the order for summary judgment, and had consented on at least two occasions to the freezing orders being extended, and that the appellant seemingly did not oppose summary judgment, but had applied for a stay which was unsuccessful. His Honour held that even if he had been satisfied that there was sufficient cause for which a sequestration order ought not be made, he would not have exercised the discretion conferred by s 52(2) of the Act to dismiss the petition. (h) The primary judge refused the appellant's application for a stay pending an appeal from the orders of Davies J of 18 August 2017 on grounds including that it was difficult to see that the appellant had any arguable point on the proposed appeal, or any rational prospect of success, or that the balance of convenience would favour a stay.

[11]

The appellant's grounds of appeal to this Court 55 By his amended notice of appeal, the appellant relied upon the following grounds - Grounds of appeal 1. The learned primary judge erred in holding that there was, for the purposes of section 53(2)(b) of the Bankruptcy Act 1966, no other sufficient cause for which a sequestration order ought not to be made, in that the appellant's circumstances arising from, inter alia: (a) the notices of assessment of the Commissioner of Taxation (upon which judgment was entered in proceeding VID325/2017 (Debt Proceeding)); and (b) the seizure of documents by the Commissioner of Taxation and/or the provisional liquidators appointed by Davies J in the Debt Proceeding; were such that the appellant could not adduce evidence to prove that his application in the Administrative Appeals Tribunal (AAT) had a real chance of success or proving that there were substantial reasons for questioning whether there was in truth a debt, that evidence lying beyond his control at or at about the time of hearings before Registrar Gitsham on 3 September 2021 and before the learned primary judge on 7 October 2021. 2. Further or alternatively, the learned primary judge did not afford the appellant procedural fairness in that: (a) at the time of the directions hearing on 4 October 2021, the appellant had led evidence identifying the difficulties in proving, the standard required for the purposes of the hearing of the creditor's petition, his application in the AAT with respect to the notices of assessment underlying the judgment against him in that: (i) documents necessary to do so had been seized and taken out of his possession; (ii) he was still considering whether the provision by the Commissioner of Taxation of over 3,600 documents on about 3 September 2021 had satisfied his demand for production of documents relevant to his application in the AAT; (b) his Honour did not, at the directions hearing on 4 October 2021, fix the hearing of the review at a date that would have given the appellant a reasonable opportunity: (i) to consider the documents; and (ii) whether to file a further affidavit to put those documents in evidence in opposition to the creditor's petition. 56 The appellant sought orders from this court that the orders of the primary judge be set aside, and that the review be allowed with the consequence that the sequestration order be set aside. Alternatively, the appellant sought orders that the matter be remitted to a judge of the court below for rehearing.

[12]

The appellant's submissions 57 Counsel for the appellant submitted that the primary judge had erred in stating at [73] of his Honour's reasons that the appellant had made no attempt to adduce evidence of his income for each of the relevant years, for the purposes of the application for review. Counsel referred to the affidavit of the appellant sworn 5 March 2021, in which he deposed that his records had been seized, and that he had been unable to access them for the purposes of prosecuting his objections to the assessments. Counsel also relied on a claim that prior to the hearing before the primary judge, the Commissioner had delivered some 3,600 documents, and that the appellant required time to review them. This reflected the claim made by the appellant in [16] of his affidavit of 9 September 2021, which was also maintained in ground 2(a)(ii) of the amended notice of appeal, and repeated by counsel in oral submissions to the court on the hearing of the appeal. Counsel submitted that the Commissioner had made it impossible for the appellant "to prove that he had a case to put to the AAT that he did not owe the debt the subject of the judgment, and was reasonably likely to succeed", and that the primary judge had erred in foreclosing the appellant's defence for want of proof. 58 Counsel submitted that the appellant had therefore established "other sufficient cause" not to make a sequestration order, being circumstances brought about by the petitioning creditor that made it impossible for him to show that his review proceeding before the Tribunal under Part IVC of the Administration Act had reasonable prospects of success, and had established that, given a proper opportunity, the appellant might well prove that his application for review had "credible" prospects of success, which would constitute "other sufficient cause" not to make a sequestration order. 59 Counsel for the appellant submitted that the primary judge had denied the appellant procedural fairness, because the appellant had a case to put, but in the circumstances he was unable to put the case to the standard required. Counsel submitted that fairness to the appellant ought to have prevailed over the ideal expressed in r 21.02 of the General Federal Law Rules that the application for review be heard as soon as possible. Counsel submitted that the proper course was to set aside the sequestration order, and adjourn the petition for further case management so as to give the appellant a proper opportunity to articulate his case. Counsel submitted that upon demonstrating unfairness in the process, it was not necessary for the appellant to demonstrate that there was a realistic opportunity of a different outcome. Counsel submitted that the interlocutory decision of 4 October 2021 adjourning the hearing to 7 October 2021, affected the final result and was therefore able to be relied upon as a ground of challenge to the final orders on the review. 60 In oral submissions, counsel for the appellant developed his argument by submitting that the appellant's indebtedness to the Commissioner arose from administrative decisions in respect of which there was no obligation to hear the appellant and to accord him procedural fairness. Counsel submitted that the indebtedness to the Commissioner was a "legal fiction" without there ever having been a contest on the facts. Counsel submitted that the primary judge had at [67] of his reasons therefore mischaracterised the summary judgment given by Davies J as falling at a midpoint on the spectrum between one obtained after a fully contested hearing, and a judgment obtained by default or upon compromise. Counsel also submitted that the primary judge had erred in treating the appellant's grounds of opposition as inviting the court to go behind the judgment, and rejecting that invitation, which then infected his Honour's reasoning in examining whether there was sufficient cause not to make the sequestration order.

[13]

Consideration 61 This appeal comes before me as a single judge exercising appellate jurisdiction pursuant to the Federal Court of Australia Act 1976 (Cth), s 25(1AA)(a). The appeal is by way of re-hearing, in which the primary judge enjoyed no relevant advantage over this court. However, unlike the review that was before the primary judge, the appeal to this court is not a re-hearing de novo. The court's powers on appeal are engaged only if, upon this court considering for itself the evidence and other material that was before the primary judge, some legal, factual, or discretionary error is demonstrated in the orders that were made: Allesch v Maunz [2000] HCA 40; 203 CLR 172 at [23] (Gaudron, McHugh, Gummow and Hayne JJ). 62 For the purposes of the demonstration of error on appeal, the engagement of s 52(2)(b) of the Bankruptcy Act involves two related levels of decision-making. The first is whether the primary judge was satisfied that there was some "other sufficient cause" for which a sequestration order ought not be made. This does not involve the evaluation of facts and circumstances against some legal norm: cf, Dwyer v Calco Timbers Pty Ltd [2008] HCA 13; 234 CLR 124 at [40] (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ); Templeton v Australian Securities and Investments Commission [2015] FCAFC 137; 108 ACSR 545 at [23] (Besanko, Middleton and Beach JJ). Rather, it is the type of decision to which Mason and Deane JJ referred in Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513 at 518, which calls for value judgments in respect of which there may be room for reasonable differences of opinion, no particular opinion being uniquely correct. See also, Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at [43]-[49] (Gageler J). Because the powers on appeal are exercisable only upon the demonstration of error, the primary judge's evaluation of whether there was "other sufficient cause" for the purposes of s 52(2)(b) must be shown to have been wrong. Error is not shown merely by persuading an appellate court to make a different evaluation, which may be no better than the first: see, Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 211-212 (Mason CJ, Deane and McHugh JJ), and the approval of the comments of Kirby P in Golosky v Golosky (unreported, NSW Court of Appeal, 5 October 1993). The second and related level of decision-making is whether upon the judge being satisfied of some "other sufficient cause", the court should in the exercise of its discretion dismiss the petition: Endresz v Australian Securities and Investments Commission (No 2) [2015] FCAFC 33; 228 FCR 334 (Endresz) at [34], [37] (Edmonds, Gordon and Beach JJ). 63 Therefore, in relation to this appeal from the decision of the primary judge to the extent that it challenges the judge's rejection of the appellant's claim that the power under s 52(2)(b) should have been exercised to dismiss the petition, the principles essayed in House v The King [1936] HCA 40; 55 CLR 499 at 504-505 apply, such that it must be demonstrated that the decision miscarried. Within those principles, the correctness standard applies to any challenge on appeal to the legal principles that were applied, or to findings of material fact upon which the evaluation took place, but not to the primary judge's evaluation, or to the exercise of the statutory discretion. The principles in House v The King also apply to the appellant's challenge to the primary judge's discretionary decision to fix the review for hearing. If the court is satisfied that error is established, then in a case such as the present where the primary judge enjoyed no relevant advantage over this court, the court may proceed to make its own findings and evaluative conclusions, and formulate its own reasoning: Robinson Helicopter Company Inc v McDermott [2016] HCA 22; 331 ALR 550 at [43] (French CJ, Bell, Keane, Nettle and Gordon JJ). 64 Before I address directly the grounds of appeal and the arguments in support, I will identify some further relevant background to the appellant's indebtedness to the Commissioner, and some of the legal context that is involved. 65 It appears from the Commissioner's decision dated 15 January 2021 made upon the appellant's objections, that the assessments issued to the appellant fell into four categories - (a) amended assessments for the income years to 30 June 2010, 2011, and 2012; (b) default assessments for the income years to 30 June 2013, 2014, 2015, and 2016; (c) penalty assessments in relation to the shortfall in declared income for 2010 to 2012; and (d) penalty assessments in relation to the appellant's failure to provide documents for 2013 to 2016. 66 The default assessments were occasioned by the failure of the appellant to file any taxation returns for the years 2013 to 2016. 67 Upon the issue of the above assessments, the appellant became indebted to the Commonwealth in the amounts that were specified in the assessments which became due and payable to the Commissioner: Administration Act, Sch 1, s 250-10, 255-5. The validity of the assessments could not be affected by any non-compliance with the Administration Act, or any other taxation law: Sch 1, s 155-85; but see also, Federal Commissioner of Taxation v Futuris [2008] HCA 32; 237 CLR 146 (Futuris). The notices of assessment are conclusive evidence that the assessments were properly made, and save for the purposes of review proceedings under Part IVC, that the amounts and particulars of the assessment are correct: s 350-10, item 2. The commencement by the appellant of the review proceeding in the Tribunal does not affect the taxation that may be recovered: s 14ZZM. The apparent asperity of the operation of provisions like s 14ZZM of the Administration Act has been remarked upon: Clyne v Deputy Commissioner of Taxation (1982) 43 ALR 342 at 344 (Mason A-CJ). However, although harsh, the legislative policy to protect the interests of the revenue has long been recognised: Deputy Commissioner of Taxation v Broadbeach Properties Pty Ltd [2008] HCA 41; 237 CLR 473 (Broadbeach Properties) at [41]-[45] (Gummow A-CJ, Heydon, Crennan and Kiefel JJ) and the cases cited therein. For these reasons, the submission of counsel for the appellant that the indebtedness of the appellant to the Commissioner was a "legal fiction" must be rejected: see Broadbeach Properties at [55], citing Futuris at [20]. Against this background, it is also necessary to note that in the Part IVC review proceedings commenced by the appellant in the Tribunal, the appellant had the burden of proving that the assessments were excessive or incorrect, and what the assessments should have been: s 14ZZK. 68 It follows that there is no reason to go behind the judgment debt in this case, which would be an issue arising under s 52(1) of the Bankruptcy Act. Davies J gave summary judgment to the Commissioner upon being satisfied that the appellant had no reasonable prospects of defending the proceeding. There is no reason to doubt that conclusion, and therefore no reason to question that the Commissioner established the existence of a debt that was truly owed for the purposes of s 52(1)(c): cf, Ramsay Health Care Australia Pty Ltd v Compton [2017] HCA 28; 261 CLR 132 at [111]. The primary judge was therefore correct in concluding at [68] that there was no sufficient reason to go behind the judgment. 69 This conclusion directs attention to whether there was any error in the primary judge's decision that for the purposes of s 52(2)(b) there was no other sufficient cause for a sequestration order not to be made. 70 The appellant bore the onus of demonstrating to the primary judge some sufficient cause for which a sequestration order should not be made, which would thereby enliven the discretion in s 52(2)(b): see, the text of s 52(2), and Ling v Enrobook Pty Ltd (1997) 74 FCR 19 at 24 (Davies, Wilcox and Branson JJ), citing the reasons of the primary judge in Cain v Whyte (1933) 48 CLR 639 at 645-646 that were approved on appeal. The circumstances which may constitute "other sufficient cause" are extremely variable: Clyne v Deputy Commissioner of Taxation (1985) 5 FCR 1 at 5 (Fisher, Morling and Wilcox JJ), cited in Endresz at [37]. The fact that the appellant's application for review to the Tribunal under Part IVC of the Administration Act was pending was capable of being a relevant matter for the primary judge to consider when exercising powers of adjournment of the proceeding, or upon considering whether to set aside the sequestration order on the basis that s 52(2)(b) was engaged: Ahern v Deputy Commissioner of Taxation (1987) 76 ALR 137 at 148 (Davies, Lockhart and Neaves JJ). It is upon these premises that I now turn to the grounds of appeal.

[14]

Ground of appeal 2 71 I will begin by considering the second ground of appeal, which claims that the primary judge denied the appellant procedural fairness by not, on 4 October 2021, fixing the hearing of the review on a date that would have given the appellant a reasonable opportunity to consider over 3,600 documents that the appellant claimed the Commissioner had provided on 3 September 2021, and based upon those documents, to consider whether to adduce further evidence in opposition to the petition. Although the decision the subject of the second ground of appeal was an interlocutory decision that was made ahead of the hearing, it may be challenged on appeal against the final orders if it affected the final result: Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; 209 CLR 478 at [6]-[7] (Gaudron, McHugh and Hayne JJ). 72 The second ground of appeal fails for the fundamental reason that I reject the central factual premise that underpins it. The appellant deposed at [13] to [16] of his affidavit of 9 September 2021 that the Commissioner provided over 3,600 documents relating to the review by the Tribunal to the appellant and his tax lawyer on 2 September 2021. The appellant claimed at [16] - I am still looking through the files that the DCT has forwarded. There are over 3,600 documents. I am in the process of reviewing the volume of documents to see if the set is complete and examining the documents to assess the relevance or otherwise of the DCT's claims to complete my defence relating to the allegations. 73 The primary judge did not accept this claim. Instead, at [26] his Honour accepted the affidavit evidence of the solicitor acting for the Commissioner that there were least 115 documents comprising 3,611 pages and a supplementary bundle comprising a further 80 pages. At [27], his Honour found that the appellant had been added to a file sharing application granting him access to the documents in May 2021, that there had been ongoing dialogue between the solicitors for the Commissioner and the appellant's tax lawyer in relation to the production of further documents, and that in the absence of more cogent evidence, he was not prepared to infer that the ongoing production of documents had not been addressed. 74 The claim that the appellant had received 3,600 documents from the Commissioner on 2 September 2021 formed the basis of the second ground of appeal, and the written and oral submissions that were advanced in support which repeated the claim. In saying this, I make no criticism of counsel for the appellant, whose submissions were founded upon the appellant's evidence, and no doubt his instructions. However, the submissions had to deal with the findings of the primary judge at [26] and [27] in respect of which there is no express challenge. The primary judge evidently did not accept the appellant's evidence on this topic, and no error in this regard has been demonstrated on appeal. The appellant's claims that there were over 3,600 documents for him to review are contrary to the inferences that arise from the correspondence and accompanying documents passing between the solicitors for the Commissioner and the appellant's tax lawyer, and in particular the indices of the documents that were provided to the appellant that were annexed to the affidavit of the Commissioner's solicitor, Jacqueline Alexandra Mills sworn 1 October 2021. Those inferences are to be given more weight, as they are based upon a course of professional correspondence constituting inherently reliable evidence. By reference to that evidence, the total number of documents that the Commissioner provided to the appellant was only 122. Of those documents, 115 were made available for download on 7 May 2021. Although the appellant's tax lawyer in his letter of 13 July 2021 requested that the documents be presented in a more legible form due to unusually large margins and shrunk contents, it is evident from the balance of that letter that the appellant's tax lawyer was nevertheless able to review the documents, because he stated so. His review of the documents enabled him to claim that a number of "important" documents had been omitted. The remaining seven supplementary documents, comprising only 80 pages, were made available more than one month before the hearing of the review on 2 September 2022, together with a further copy of the documents that had been earlier provided. One supplementary document, being an email about a property in McCrae, took up 55 of those 80 pages. The total number of pages recorded in the indices of the documents was 3,691. However, the appellant persisted with claims that there were over 3,600 documents which he had not had an opportunity to review. For the foregoing reasons, there was no error by the primary judge in not accepting the appellant's evidence on these claims. 75 Otherwise, the reasonableness of fixing the hearing for 7 October 2021 must be judged at the time that decision was made: Minister for Home Affairs v DUA16 [2020] HCA 46; 385 ALR 212 at [26] (Kiefel CJ, Bell, Keane, Gordon and Edelman JJ). Having reviewed the transcript of the directions hearing before the primary judge on 4 October 2021, his Honour's decision to fix the review for hearing on 7 October 2021 was unremarkable. The appellant was represented by counsel, who professed inexperience in the jurisdiction. Counsel objected to the matter going to hearing, but did not have instructions as to the reasons why. The primary judge was therefore faced with vague, undeveloped submissions from counsel for the appellant. His Honour referred to the requirement in r 21.03(2) of the General Federal Rules that the application for review must be listed for hearing as soon as possible. There was no discretionary error by the primary judge in giving weight to this statutory mandate, which is soundly based in policy: see, Bechara v Bates [2021] FCAFC 34; 286 FCR 166 at [5] (Allsop CJ, Markovic and Colvin JJ). The fixing of the review for hearing on 7 October 2021 did not preclude the appellant at the hearing from advancing submissions based upon his affidavit material in support of a stay (putting aside whether there was any merit in this claim), an adjournment of the proceedings pursuant to s 33(1)(a), or that the sequestration order should be set aside. In the circumstances of this case, that was the occasion for the appellant to advance submissions of that type rather than at a directions hearing in a busy court. It follows that even if there was any discretionary error in fixing the hearing, the error was not material: see generally, Nathanson v Minister for Home Affairs [2022] HCA 26 at [1] (Kiefel CJ, Keane and Gleeson JJ), [45] (Gageler J). 76 For the above reasons, I reject the claim that there was any discretionary error by the primary judge in fixing the hearing of the review, and I reject the claim that by fixing the hearing for 7 October 2021, the appellant was thereby denied procedural fairness.

[15]

Ground of appeal 1 77 As to the first ground of appeal, the starting point is to identify the central reasons for which the primary judge rejected the claim that there was some other sufficient cause for which a sequestration order ought not be made. This decision was evaluative in nature by reference to the broad criterion in s 52(2)(b) that does not involve any fixed legal norm. The appellant must therefore establish that that the primary judge's decision miscarried in accordance with the principles in House v The King. It is not enough for the appellant to persuade me that, had I been in the position of the primary judge, I would have exercised the power conferred by s 52(2)(b) to reach a different result (see [62] above). It is convenient to note at this point that counsel for the appellant accepted in his written submissions that the primary judge had correctly stated the principles engaged for dismissing a petition under s 52(2)(b) for other sufficient cause. 78 There were two interlinked threads to the primary judge's reasoning. 79 The first was that at [56], his Honour recognised the centrality of solvency in the law of bankruptcy. His Honour held at [60] that there was no evidence upon which a finding of solvency could be made. There was no error in this conclusion, and it was not the subject of any ground of appeal. Having reviewed the evidence before the primary judge, there is nothing that would have enabled the primary judge to form any considered view about the appellant's solvency. 80 Against this background, the second thread was that his Honour held at [73] (which I have set out under [54] above) that, even if it were assumed in the appellant's favour that he would be able to discharge the statutory burden on the review before the Tribunal and demonstrate that several amended assessments (which I take to include the default assessments) were excessive, there was no rational basis for concluding that the appellant's tax liability would be below the threshold of $20,000 upon which at the relevant time a petition could be presented. The primary judge made this finding after referring at [72] to the appellant's evidence concerning the seizure of records, documents, and computerised information, and the appellant's inability to access those records. To put it another way, his Honour was prepared to accept the premise that the outcome of the review before the Tribunal might alter the level of the appellant's indebtedness to the Commissioner. But there still remained no rational pathway through which his Honour could reach the conclusion that the appellant's indebtedness could be reduced to such an extent that it would fall below the statutory threshold. 81 On the evidence before the primary judge, no error has been demonstrated in relation to that conclusion. The evidence before the primary judge included the appellant's claimed income for the years 2013 to 2016 that was referred to in the affidavit of Mr Khouri sworn 1 October 2021 to which I referred at [50] above. There was also the appellant's evidence at [24] of his affidavit of 9 September 2021 that from 2013 when he commenced to work for a client, he drew down between $10,000 and $15,000 per month, and this was income for the next three years. The primary judge found at [73], that the appellant had known since at least May 2021 that he would need to show what his positive income was for each tax year, and that no attempt had been made to adduce that evidence for the purposes of the review. There was no error in this finding. That is particularly because there was no endeavour by the appellant to advance any coherent case before the primary judge as to his likely taxable income in respect of the years 2013 to 2016 (in respect of which he had failed to file taxation returns), for the purpose of demonstrating that there was sufficient cause not to make a sequestration order. Although the appellant stated at [23] of his affidavit of 9 September 2021 that witness documents had been lodged with the Tribunal, these documents were not produced. The appellant claimed that the Commissioner had provided over 3,600 documents to him on 2 September 2021, when for the reasons that I have given in respect of the second ground of appeal, that was not the case. There was no evidence that the appellant, or his solicitors, or his tax lawyer, had even attempted for the purposes of advancing the appellant's claims on the review of the sequestration order, to review the documents that were provided by the Commissioner, initially in May 2021, and again with the small number of additional documents that were provided on 2 September 2021. On the contrary, it can be inferred from [16] of the appellant's affidavit of 9 September 2021 that he had not attempted to review the documents. 82 Ultimately, the primary judge reached an evaluative conclusion that there was no sufficient cause to refuse to make a sequestration order pursuant to s 52(2)(b). This conclusion was well open to His Honour on the evidence. Therefore, this ground of appeal must fail.

At a glance

Court

Decision date

Before

Source

Judgment (17 paragraphs)

Parties

Legislation Cited (10)

Cases Cited (28)

Cited By (3)