Sandbach v Commissioner of Taxation [2017] FCA 526

FEDERAL COURT OF AUSTRALIA

Sandbach v Commissioner of Taxation [2017] FCA 526 File number(s): VID 138 of 2016

Judge(s): PERRAM J

Date of judgment: 16 May 2017

Catchwords: PRACTICE AND PROCEDURE – appeal from decision of Administrative Appeals Tribunal – whether application dismissed for want of prosecution on initiative of Court – consideration of r 35.32 of Federal Court Rules 2011 (Cth) – repeated failure to comply with orders of Court – where Applicant is practising barrister

Legislation: Federal Court of Australia Act 1976 (Cth) s 37N Federal Court Rules 2011 (Cth) rr 1.40, 35.32

Cases cited: Lenijamar Pty Ltd v AGC (Advances) Limited [1990] FCA 185; (1990) 27 FCR 388

Date of hearing: 15 May 2017

Registry: Victoria

Division: General Division

National Practice Area: Taxation

Category: Catchwords

Number of paragraphs: 14

Counsel for the Applicant: The Applicant appeared in person

Counsel for the Respondent: Mr P Nicholas

Solicitor for the Respondent: Australian Taxation Office, Review and Dispute Resolution

ORDERS VID 138 of 2016

BETWEEN: ALAN WALTER SANBACH Applicant

AND: COMMISSIONER OF TAXATION Respondent

JUDGE: PERRAM J DATE OF ORDER: 16 MAY 2017

THE COURT ORDERS THAT:

1. The proceedings be dismissed. 2. The Applicant pay the Respondent's costs of the proceedings as taxed or agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

PERRAM J: 1 This taxation appeal from the Administrative Appeals Tribunal is presently listed for hearing before me on 8 June 2017 in Melbourne. On Friday 12 May 2017, following a breach of earlier timetabling orders, the matter was relisted for a case management hearing before me at which, I had my associate indicate by email, I proposed to consider dismissing Mr Sandbach's appeal for want of prosecution. 2 The order of which Mr Sandbach was in breach was Order 1 of the orders of 5 May 2017. It was in these terms: '1. The time for the Applicant to file and serve Parts A and B of the appeal book and his outline of submissions and chronology is extended to 5 May 2017.' 3 That order was made by consent. Mr Sandbach had been due to serve Parts A and B of the appeal book on 13 April 2017 (under a timetable set by orders made on 9 March 2017). But he had not complied with that order. On 4 May 2017, I was contacted by the AGS with the consent of Mr Sandbach and was told that his submissions would be ready on 5 May 2017, that is to say, the very next day. At that time, consent orders were formulated to permit Mr Sandbach to file his submissions on that day. I then made those orders on 5 May 2017. At that time, Mr Sandbach made no suggestion that the hearing date of 8 June 2017 might be in peril. 4 In an unsworn affidavit Mr Sandbach put before me at the hearing on 15 May 2017 (but provided by email on 12 May 2017) he gives an account of events of 4 May 2017 – the day I was told his submissions would be ready on 5 May 2017 – which made it apparent that he could have had no basis to suggest that his submissions would be ready. In his unsworn affidavit, Mr Sandbach, who is a practising barrister, says that in the course of preparing his submission he has come to understand that he should not be acting on his own behalf. He says that he had this epiphany about two weeks ago (i.e. around 1 May 2017) despite this proceeding having been on foot since 11 February 2016. He then met with a lawyer on 4 May 2017 but that lawyer did not agree to take the matter. He saw another lawyer on 10 May 2017 but that lawyer did not want the case either. By then Mr Sandbach had already failed to meet the 5 May 2017 deadline he had agreed for the service of his submissions. 5 The point for present purposes is that Mr Sandbach must have known on 4 May 2017 that there was no real prospect of his submissions or Part A and B of the Appeal Book being prepared any time near 5 May 2017. Rather than bring that matter to the Respondent's or my attention, he consented to a fresh timetable with which he must have known he was never going to comply. 6 All of this might sound a little precious on my part, but this most recent breach is by no means the first time that Mr Sandbach has found himself in this position. In fact, almost immediately upon commencing the appeal Mr Sandbach appears to have embarked on a program of breaking every timetabling order I have made. To appreciate the scale of the problem the following chronology might be noted: 11 February 2016 Mr Sandbach files his appeal. 19 April 2016 Matter fixed for a hearing of 1 day on a date to be fixed. Mr Sandbach directed to submit a draft index of Part A to the Registrar by 2 May 2016. 2 May 2016 No draft index prepared for Appeal Book. Appeal fixed for hearing on 26 October 2016. 9 September 2016 Still no draft index prepared. Court seeks to list matter for directions the following week. 10 September 2016 Mr Sandbach informs my associate that he is overseas and will not return until 17 October 2017. 12 September 2016 Direction made that Mr Sandbach file an affidavit by 22 September 2016 explaining why he had not complied with the earlier orders. Matter listed for directions on 24 October 2016. 22 September 2016 Mr Sandbach seeks extension of time to file affidavit. Extension to 20 October 2016 granted. 21 October 2016 Affidavit filed. Mr Sandbach indicates that he had lodged the draft index on 19 April 2016. He says he did not receive a response from the Registrar until 5 August 2016. The situation was in fact more complex than this. He otherwise says he was too busy in various trials to attend to the matter and then went overseas. 24 October 2016 Directions hearing. Orders made vacating hearing on 26 October 2016. Mr Sandbach again ordered to file draft index by 31 October 2016. He is also ordered to pay costs of directions hearing on an indemnity basis. Matter listed for further directions on 2 November 2016 to consider whether earlier orders complied with and whether, if not, the proceeding should be dismissed. 14 February 2017 Appeal index still not settled. 9 March 2017 Directions. Orders made that parties attend before Registrar by 16 March 2017 to settle draft index. Mr Sandbach to file appeal books and submissions by 13 April 2017. 4 May 2017 Mr Sandbach indicates his submissions will be ready by next day. In fact, he is trying to get a lawyer to act for him and there is no prospect of his submissions being ready on 5 May 2017. 5 May 2017 Orders by consent that Mr Sandbach serve his submissions by 5 May 2017 together with Parts A and B of appeal book. 12 May 2017 Matter relisted for 15 May 2017. There are still no submissions filed. 15 May 2017 Directions. 8 June 2017 Current hearing date for appeal.