Caporale v Deputy Commissioner of Taxation [2013] FCA 256

FEDERAL COURT OF AUSTRALIA

Caporale v Deputy Commissioner of Taxation [2013] FCA 256 Citation: Caporale v Deputy Commissioner of Taxation [2013] FCA 256

Parties: ROSA CAPORALE v DEPUTY COMMISSIONER OF TAXATION

File number: NSD 188 of 2013

Judge: ROBERTSON J

Date of rulings: 26 March 2013

Catchwords: EVIDENCE – admissibility of affidavits

Cases cited: 1 Caporale v Deputy Commissioner of Taxation [2013] FCA 242 2 Deputy Commissioner of Taxation v Caporale [2013] FMCA 5 Date of hearing: 18 March 2013

Place: Sydney

Division: General

Category: Catchwords

Number of paragraphs: 64

Counsel for the Applicant: Ms R Caporale appeared in person

Counsel for the Respondent: Mr AJ O'Brien

Solicitor for the Respondent: ATO Legal Services Branch

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 188 of 2013

BETWEEN: ROSA CAPORALE

Applicant

AND: DEPUTY COMMISSIONER OF TAXATION

Respondent

JUDGE: ROBERTSON J DATE: 26 MARCH 2013 PLACE: SYDNEY

REASONS FOR RULINGS 1 These are my rulings on two affidavits, each sworn by Rosa Caporale, the first dated 16 January 2013 and the second dated 7 March 2013. It has been necessary to give written rulings given the volume of material tendered and the limited time available on 18 March 2013 to deal with that material. The interlocutory hearing is to resume on 5 April 2013.

The 16 January 2013 affidavit 2 This affidavit was originally sworn in proceedings NSD 2229/2012 seeking leave to appeal from certain interlocutory steps taken in the Federal Magistrates Court on the hearing of the present respondent's creditor's petition. On 18 March 2013 I refused leave to appeal in that matter in light of the final decision of the Federal Magistrate on 4 February 2013, Deputy Commissioner of Taxation v Caporale [2013] FMCA 5, and the appeal to this Court from that decision: see Caporale v Deputy Commissioner of Taxation [2013] FCA 242. 3 Nevertheless the 16 January 2013 affidavit was sought to be read by Ms Caporale on her application to stay proceedings under the sequestration order, made by the Federal Magistrate on 4 February 2013, pending the hearing and determination of the appeal: NSD 188/2013. 4 This affidavit consists of 96 paragraphs and 23 annexures filling two arch lever folders. The respondent Commissioner took objection to the entirety of the affidavit with the exception of the opening formal paragraphs. 5 I admit paragraphs 1 and 2. 6 I reject paragraph 3 as it is no longer relevant. 7 I reject paragraph 4 as it states a conclusion and takes the form of a submission. 8 I reject paragraph 5 as it is no longer relevant or the substance appears in the final decision of the Federal Magistrate the subject of the appeal to this Court. 9 I admit paragraphs 6 to 10, despite their form. These paragraphs set out facts which may underlie a procedural fairness ground of appeal. 10 I admit paragraphs 11 to 14 for the same reason. I also admit the interlocutory orders of the Federal Magistrate, "Tab 1", referred to in these paragraphs. 11 I admit paragraph 15 for the same reason, and "Tab 2" referred to in that paragraph, as material before the Federal Magistrate. 12 As to paragraph 16, I admit the paragraph with the exclusion of the words "as the ATO did not act in good faith to procure the judgement" if those words are tendered to establish that fact. I also admit "Tab 3" on the basis that it establishes a fact, the filing of a notice of motion in the District Court of New South Wales, which may underlie a ground of appeal. I do not admit "Tab 3" as establishing the truth of its contents. 13 I admit paragraph 17 and "Tab 4" as seeking to prove a fact, the filing of an affidavit in the District Court of New South Wales, which may underlie a ground of appeal. I do not admit the paragraph or "Tab 4" to establish the truth of the contents of that affidavit. 14 I admit paragraph 18 and "Tab 5" as submission only given that each states conclusions rather than primary facts. I note that "Tab 5" appears to be an updated version of part of "Tab 4". As with "Tab 4", I do not admit "Tab 5" to establish the truth of its contents. 15 I admit paragraphs 19 to 22 and "Tab 6", "Tab 7", "Tab 8" and "Tab 9" on the basis only and to the extent only that this was material before the Federal Magistrates Court. Either the parties before me will need to agree on that fact or the applicant before me will need to establish it. On that basis, the applicant may make submissions to this Court to establish the substance of the appeal to this Court. 16 As to paragraph 23, on the basis only and to the extent only that this was material before the Federal Magistrates Court, I admit the decision of the Administrative Appeals Tribunal at "Tab 10". I otherwise reject the paragraph as submission: it does not sufficiently identify any primary facts. 17 As to paragraph 24, I admit "Tab 11" on the basis only and to the extent only that this was material before the Federal Magistrates Court. Either the parties before me will need to agree on that fact or the applicant before me will need to establish it. I reject the paragraph as submission. 18 As to paragraph 25, I admit "Tab 12" and I admit the paragraph as it states primary facts that would appear to be relevant to a procedural fairness ground Ms Caporale wishes to advance in the appeal. 19 I reject paragraph 26 and "Tab 13" as irrelevant. 20 As to paragraph 27, I admit "Tab 14" on the basis only and to the extent only that this was material before the Federal Magistrates Court. Either the parties before me will need to agree on that fact or the applicant before me will need to establish it. I reject the paragraph as submission. 21 I make the same ruling in relation to paragraph 28 of the affidavit, that is, I admit "Tab 15" on the basis only and to the extent only that this was material before the Federal Magistrates Court. Either the parties before me will need to agree on that fact or the applicant before me will need to establish it. I reject that paragraph as submission. 22 I make the same ruling in relation to paragraph 29 of the affidavit, that is, I admit "Tab 16" on the basis only and to the extent only that this was material before the Federal Magistrates Court. Either the parties before me will need to agree on that fact or the applicant before me will need to establish it. I reject the paragraph as submission. 23 I make the same ruling in relation to paragraph 30 of the affidavit, that is, I admit "Tab 17" on the basis only and to the extent only that this was material before the Federal Magistrates Court. Either the parties before me will need to agree on that fact or the applicant before me will need to establish it. I reject that paragraph as submission. 24 I reject paragraph 31 as submission. 25 As to paragraph 32, I admit "Tab 18" on the basis only and to the extent only that this was material before the Federal Magistrates Court. Either the parties before me will need to agree on that fact or the applicant before me will need to establish it. I reject that paragraph as submission. I note I am also not persuaded of its relevance. 26 As to paragraph 33, subject to relevance, I admit "Tab 19" on the basis only and to the extent only that this was material before the Federal Magistrates Court. Either the parties before me will need to agree on that fact or the applicant before me will need to establish it. I reject the paragraph. 27 I make the same ruling in respect of paragraph 34, that is, I admit "Tab 20" on the basis only and to the extent only that this was material before the Federal Magistrates Court. Either the parties before me will need to agree on that fact or the applicant before me will need to establish it. I reject the paragraph. 28 As to paragraph 35 I reject that paragraph as submission. I note I am also not persuaded of its relevance. As to "Tab 21", it constitutes the transcript of a hearing in the Local Court involving Sappia Investments Pty Ltd. I am not persuaded of its relevance and I reject the document. 29 Paragraph 36 I reject as submission. 30 Paragraph 37 I admit. 31 In relation to paragraphs 38 and 39, I admit "Tab 22" and "Tab 23" but I reject the paragraphs as submission. 32 I reject paragraphs 40 to 91 as submission or as purporting to set out the contents of the documents at "Tab 22" and "Tab 23" or of other documents. For example, paragraph 48 in its entirety reads: "Maladministration of matters". 33 I reject paragraphs 92, 93, 94 and 95 as irrelevant. 34 The remaining paragraph, paragraph 96, consists of a number of pages, numbered 6 to 11. 35 I reject pages numbered 6, 7 and 8 of paragraph 96 as summaries of documents and as submission. I also note that I am not satisfied of the relevance of this material to the question of a stay of proceedings under the sequestration order. 36 As to pages numbered 9, 10 and 11 of paragraph 96 I reject that matter as submission, and as material the relevance of which has not been established to the question of error in the making of the sequestration order by the Federal Magistrate or to the question of a stay of proceedings under that sequestration order.