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. The 7 March 2013 affidavit 37 This affidavit consists of 83 paragraphs numbered sequentially and then a further 14 paragraphs numbered 8 to 22, together with six annexures in a single arch lever folder. 38 This affidavit was sought to be read in NSD 188/2013. As with the earlier affidavit of 16 January 2013, the Commissioner objected to the entirety of the affidavit, except for formal parts. 39 I am presently dealing only with the interlocutory application for a further stay of proceedings under the sequestration order made by the Federal Magistrate on 4 February 2013, the subject of the appeal to this Court. I give my rulings in that context. 40 I admit paragraphs 1 to 3 as formal in nature. 41 As to paragraph 4, which proceeds by reference to exhibits, I admit Exhibit 1 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 note also that I am not persuaded of its relevance on this application so this material is admitted subject to relevance. 42 Continuing with paragraph 4, I reject Exhibits 2 and 3 as they are identical to exhibits tendered on 18 March 2013 on which I then ruled and marked as Exhibit E and Exhibit D respectively. 43 Continuing with paragraph 4, I reject Exhibit 4 if it is tendered to establish the truth of the contents of the affidavit to which it refers, that is, "Affidavit of Rosa Caporale dated 2nd March 2013 for Bayconnection Property Development Pty Ltd." It is an affidavit filed in other proceedings. Further, I am not persuaded of its relevance as it is said that "it goes towards showing the conduct of the ATO that has resulted in undue judgments which the sequestration order relies on." I reject the Exhibit. 44 As to Exhibits 5 and 6 of paragraph 4 I admit that material as the transcripts of proceedings in the Federal Magistrates Court on 7 November 2012 and 10 December 2012 are likely to be relevant to the procedural fairness grounds on which, on this application, the applicant for interlocutory relief seeks to rely and the substance of which she seeks to demonstrate. 45 Paragraphs 5, 6 and 7 seek to explain the relevance of Exhibits 1 to 5. I reject those paragraphs as submission. I note there is no paragraph referable to Exhibit 6. 46 Paragraph 8 I reject as submission. 47 Paragraph 9 I admit subject to relevance. 48 Paragraph 10 I reject as submission. 49 Paragraph 11 I admit subject to relevance. 50 Paragraph 12 I reject as submission and as irrelevant. 51 Subject to what follows in this paragraph of my rulings, paragraphs 13 and 14 I admit as merely descriptive of the application and the documents sought to be relied on. However I reject paragraph 13c as I have already dealt with NSD 2229/2012: Caporale v Deputy Commissioner of Taxation [2013] FCA 242. I reject paragraph 14a on the same basis. I reject paragraph 14c to the extent it seeks to establish the facts deposed to in that affidavit although I admit as a fact, to the extent relevant, that an affidavit sworn by Ms Caporale dated 9 February 2013 was filed in case number 2010/159062 in the District Court. I reject paragraphs 14f, 14h and 14i as Ms Caporale made it clear that those documents had been replaced by the document at paragraph 14l. I also reject paragraph 14 insofar as it seeks to bring in the substance of affidavits which have not been read on the present application before me, that is I reject paragraphs 14b, 14e and 14g. I note I made rulings on 18 March 2013 on the affidavit referred to at paragraph 14k, that affidavit being dated 28 February but filed on 1 March 2013. I reject paragraphs 14m and 14n if they are intended to go beyond the affidavit dated 7 March 2013 with which I am presently dealing. 52 Paragraph 15 to 53 I reject as directed to NSD 2229/2012 in relation to which I have refused leave to appeal: Caporale v Deputy Commissioner of Taxation [2013] FCA 242. 53 Paragraphs 54 to 59 I admit as setting out the recent history of the interlocutory application in the present matter. 54 Paragraphs 60 to 61 and 62 to 64 I admit only as stating the grounds on which the applicant seeks a stay of the proceedings under the sequestration order: I do not admit those paragraphs as evidence of any facts to which they refer. The paragraphs are in summary form, as befits grounds, but which I do not admit as proving any underlying facts even on an interlocutory application such as the present. 55 Paragraph 65 to 72 state neither grounds nor primary facts. I reject them as submission. 56 Paragraph 73 consists of a summary, in tabular form, of primary factual material, including documents, not otherwise disclosed. I reject that paragraph. I also note that I am not persuaded of its relevance in relation to the order for sequestration of the estate of Ms Caporale. 57 Paragraph 74 I reject as submission. 58 Paragraph 75 I reject as submission. 59 Paragraph 76 I reject as submission. 60 Paragraphs 77 to 82 I reject as submission. 61 Paragraph 83 contains a number of annexures or exhibits in its subparagraphs a to q. I reject the entirety of the paragraph and its annexures because they are identical to paragraphs 4a to 4q of the affidavit sworn 28 February 2013 on which I ruled on 18 March 2013. 62 The paragraph numbering of the affidavit now recommences at 8 and goes through to 22. 63 I reject paragraph 8 as it is identical to paragraph 8 of the affidavit sworn 28 February 2013 on which I ruled on 18 March 2013. 64 I reject paragraphs 9 to 22 as they are identical to paragraphs 9 to 22 of the affidavit sworn 28 February 2013 on which I ruled on 18 March 2013. I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Rulings herein of the Honourable Justice Robertson. Associate: Dated: 26 March 2013