New South Wales Supreme Court CITATION : DCT v Trimcoll Pty Ltd [2004] NSWSC 559 HEARING DATE(S) : 10 June 2004 JUDGMENT DATE : 30 June 2004 JURISDICTION: Common Law JUDGMENT OF : Master Harrison DECISION : (1) The plaintiff's notice of motion filed 12 December 2003 is dismissed; (2) The plaintiff is to pay the defendant's costs as agreed or assessed. CATCHWORDS : Summary judgment - penalties - pay-roll tax - Income Tax Assessment Act 1936 (Cth) s 221YHDA Administrative Appeals Tribunal Act 1975 - subs 42A(6) LEGISLATION CITED : Income Tax Assessment Act 1936 (Cth) - ss 221EAA(1); 221YHDA; 221YHH1) Supreme Court Rules 1970 (NSW) Part 13 r 2 Taxation Administtration Act 1953 (Cth) - Part IVC Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 Air Services Australia v Zarb (unreported, NSWSC 26 August 1998) Baker v Staffordshire County Council [1996] 2 All ER 748 Dey v Victorian Railway Commissioners (1948-49) 78 CLR CASES CITED : General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 Hoare Bros Pty Ltd v Deputy Commissioner of Taxation (1996) 62 FCR 302; (1996) 135 ALR 677; (1996) 19 ACSR 125; (1996) 14 ACLR 394; (1996) 96 ATC 4163; (1996) 32 ATR 148 Moutere Pty Limited v Deputy Commissioner of Taxation (2000) 34 ACSR 533; (2000) 44 ATR 263; [2000] NSWSC 379 Mulheron v Australian Telecommunications Corporation (1991) 23 ALD 309 Trylow v Commissioner of Taxation (2004) ATC 4406; (2004) 55 ATR 408; [FCA] 446 Webster & Anor v Lampard (1993) 177 CLR 598 Deputy Commissioner of Taxation (Plaintiff) PARTIES : Trimcoll Pty Limited (Defendant) FILE NUMBER(S) : SC 11920/2003 Mr D McGovern SC with Mr M Cleary (Plaintiff) COUNSEL : Mr M L Brabazon (Defendant) C Yazdan-Parast, ATO Legal Services (Plaintiff) SOLICITORS : Mr Charles Roth, Charles G Roth & Co (Defendant) - 18 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST MASTER HARRISON WEDNESDAY, 30 JUNE 2004 11920/2003 DEPUTY COMMISSIONER OF TAXATION v TRIMCOLL PTY LIMITED JUDGMENT (Summary judgment - Penalties - pay-roll tax - Income Tax Assessment Act 1936 (Cth) s 221YHDA) 1 MASTER: By notice of motion filed 12 December 2003 the plaintiff seeks summary judgment pursuant to Part 13 r 2 of the Supreme Court Rules 1970 (NSW) (SCR). The plaintiff relied on the affidavit of Martin Dwyer sworn 9 December 2003 and Susanne Leonie Vihm sworn 9 June 2004. The defendant relied on the affidavit of Charles George Roth sworn 27 February 2004. 2 By statement of claim filed 31 July 2003 the plaintiff alleges that during the period 1 June 1994 to 30 September 1999 the defendant made prescribed payments but failed to deduct amounts (prescribed payment deductions) from these payments as required by s 221YHDA of the Income Tax Assessment Act 1936 (Cth) (the ITAA) and is liable to pay interest on these amounts. The plaintiff claims that the defendant is indebted to the Commonwealth in the sum of $3,750,567.89 in respect of penalties for failure to make prescribed payments deductions and an additional charge for late payment. The defendant denies that it failed to make prescribed payment deductions and denies that it is indebted to the Commonwealth in the sum of $3,750,567.89 and pleads that: "[I]n relation to the whole of the default statement of claim the defendant says that each of the payees to which it made prescribed payments had provided to the defendant with a completed and signed Prescribed Payment System (PPS) Payee Declaration which varied the payment deduction to be made to NIL." [D para 6] The law in relation to summary judgment 3 The relevant parts of Part 13 r 2 of the SCR says: "2(1) Where, on application by the plaintiff in relation to any claim for relief or any part of any claim for relief of the plaintiff - (a) there is evidence of the facts on which the claim or part is based; and (b) there is evidence given by the plaintiff or by some responsible person that, in the belief of the person giving the evidence, the defendant has no defence to the claim or part, or no defence except as to the amount of any damages claimed, the Court may, by order, on terms, give such judgment for the plaintiff on that claim or part as the nature of the case requires. 4 In Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 the High Court held at 57 that: "Ordinarily a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formula which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were to go to trial in the ordinary way." According to their Honours, this is because: "It would be wrong to deny a plaintiff resort to the ordinary processes of a court on the basis of a prediction made at the outset of a proceeding if that prediction is to be made simply on the preponderance of probabilities." 5 Similarly, in Air Services Australia v Zarb (Unreported, NSWSC 26 August 1998) Rolfe AJA at 13 found it useful to remind himself of the highly demanding test imposed on a party seeking summary judgment. His Honour referred to Dey v Victorian Railway Commissioners (1948-49) 78 CLR 62; General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 and Webster & Anor v Lampard (1993) 177 CLR 598. I have reproduced some of the passages quoted in Zarb. 6 In General Steel Barwick CJ, who heard the application alone stated at 130: "Although I can agree with Latham CJ in the same case when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings, in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed." 7 Barwick CJ also said at 129: "It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of cause of action - if that be the ground on which the Court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; 'so obviously untenable that it cannot possibly succeed'; 'manifestly groundless'; 'so manifestly faulty that it does not admit of argument'; 'discloses a case which the Court is satisfied cannot succeed'; 'under no possibility can there be a good cause of action'; be manifest that to allow them' (the pleadings) 'to stand would involve useless expense." 8 In Webster Mason CJ, Deane and Dawson JJ reinforced the rigorous testing stating, at 602: "The power to order summary judgment must be exercised with 'exceptional caution' and 'should never be exercised unless it is clear that there is no real question to be tried."' 9 According to Rolfe AJA in Zarb at 15-16: "The demanding nature of the test is in no way lessened in circumstances where there are the potential for difficult factual and legal issues to arise. Rather, as the decision in Webster made clear, it is heightened: see also Wickstead & Ors v Browne (1992) 30 NSWLR 1 and Esanda Finance Corporation Limited v Peat Marwick Hungerfords (1997) 188 CLR 241." The facts 10 On 6 January 2001 the Commissioner of Taxation made a determination of liability against the defendant in these proceedings in the amount of $1,722,090.35. The subject of that liability was the application of penalty taxes against the defendant's failure to deduct tax from payments made by the defendant subject to the Prescribed Payment System (PPS), in respect of the years ended 30 June 1994 to 2000. The penalty taxes were applied at the rate of 100% of the tax that ought to have been deducted by the defendant, without any remission of the amount. Liability to a charge of interest is dependant on liability for penalty tax and the plaintiff claims interest. 11 On 28 February 2001 pursuant to Part IVC of the Taxation Administration Act 1953 (Cth) (TAA) the defendant lodged an objection in respect of the above determination. The defendant's grounds of objection were that there had been "… no failure to deduct tax from the payments made …" and alternatively that if there had been a failure to deduct tax from the payments made then the amount of penalty tax imposed was "… excessive and should be reduced to nil or some other lesser amount." 12 On 30 April 2001 the Commissioner notified the defendant that he had decided to disallow the defendant's objection. The reasons for the decision included that the defendant had "…failed to show how it cannot be liable to deduct Prescribed Payments to payees for work done in terms of the Prescribed Payment System…". 13 The plaintiff made three submissions on why it is entitled to summary judgment. Firstly, the plaintiff submitted that there is a debt due by statute and it is payable whether an appeal or review has been lodged; secondly, no defence can be maintained in this court because any appeal must be brought in accordance with Part IVC of the TAA, namely the Administrative Appeals Tribunal (AAT) or the Federal Court and not to this court; and thirdly, that under subsection 42A(6) of the Administrative Appeals Tribunal Act 1975 (the AAT Act), the effect of a dismissal of an application by the AAT is that, unless it is reinstated by the AAT, the proceedings to which the application relates are taken to be concluded. The defendant submitted that the underlying liability to make prescribed payments could be challenged in this court. According to the defendant there is only a debt due if the underlying criteria in section 221YHD of the ITAA is satisfied and there is no issue estoppel or res judicata raised by the AAT proceedings. Income Tax in relation to Prescribed Payment System (PPS) 14 The starting point I think, is reviewing the relevant sections of the ITAA in relation to the PPS. I have reproduced portions of the judgment of Austin J in Moutere Pty Limited v Deputy Commissioner of Taxation (2000) 34 ACSR 533; (2000) 44 ATR 263; [2000] NSWSC 379 which I gratefully acknowledge. 15 The PPS falls into Division 3 and is similar to the PAYE System in Division 2 of the ITAA. Austin J describes the PPS in the following manner. "The Prescribed Payment System 2 I shall describe the PPS as in force in 1998, in the form applicable for the purposes of the present case. 3 The object of Division 3A of Part VI of the Assessment Act is to provide for the collection of tax by deduction from certain payments for work ('prescribed payments') made by payers ('eligible paying authorities'): s 221YHAAF. Definitions 4 A 'paying authority' is a person who makes, or is liable to make, a prescribed payment (s 221YHA(1)), and 'eligible paying authority' is defined to include a paying authority that is not a natural person (s 221YHA(4)). 5 A 'payment' means a payment that is made, or is liable to be made, under a contract the performance of which involves the performance of work, but the term does not include a payment of salary or wages (s 221YHA(1)). 'Prescribed payments' are payments of a kind declared by the regulations to be prescribed payments (s 221YHA(1)), the relevant regulations being found in Part 7 Division 4 of the Income Tax Regulations. For the purposes of the present case, I need only give a broad and approximate summary of the lengthy and detailed provisions of the Regulations. 6 Regulation 126 declares certain payments to be prescribed payments. The payment must be for the performance of work for a 'prescribed person' involving activities of the listed kinds (reg 126(1)). Regulation 126(2) lists various activities in the construction industry, including such matters as painting, the installation of walls and ceilings, and other activities carried out on a structure. Regulation 126(3)(e) specifies the provision of building and construction services of a professional nature. In the present case there is evidence that the plaintiff made various payments to subcontractors for work of the kinds specified in Regulation 126(2) or (3)(e). Regulation 126(4) defines 'prescribed person' to mean (approximately) a person who is carrying on a business that consists wholly or principally of carrying out activities of the specified kinds, on behalf of someone else. 7 Either the plaintiff, or one of its joint venture partners, was a 'prescribed person' in relation to the building activities which are the subject of this case, though (as I shall explain) there is an issue as to whether, in proceeding against the plaintiff, the Commissioner has selected the correct corporate entity. I note that under s 221YHZ, Division 3A applies in relation to the making of prescribed payments by a partnership as if the partnership were a person, but the obligation may be discharged by any of the partners and they are jointly and severally liable to pay the amounts which are payable under the provisions of Division 3A. The obligation to deduct and send 8 Where an eligible paying authority makes a prescribed payment to a payee, the paying authority must deduct a certain percentage of the prescribed payment. Under ss 221YHD and 221YHDA, the amount of the deduction depends upon whether the payee has made a payee declaration, a matter that I need not explore in this case. Having made a deduction as required by those sections, the eligible paying authority is discharged from all liability to pay or account for the deduction to any person other than the Commissioner (s 221YHM). 9 The eligible paying authority is obliged to send to the Commissioner all amounts so deducted, within 14 days after the end of each month in which deductions have been made (s 221YHDC(2)). The same section provides that an eligible paying authority which fails to remit the deductions to the Commissioner is guilty of an offence, and it requires the eligible paying authority to make reports to the Commissioner. Penalties for failure to send payments to Commissioner 10 If the eligible paying authority does not send those amounts to the Commissioner within 14 days of the end of the month, the principal amount continues to be payable and in addition, the eligible paying authority is liable to pay a penalty to the Commissioner under s 221YHJ. The penalty amount is in two parts. 11 First, there is a penalty equal to 20 percent of the principal amount (s 221YHJ(1)(b)(ii)(A) - which I shall call 'the subparagraph (A) amount'). Secondly, there is a penalty by way of interest, initially at the rate of 16% per annum but later reduced to 13.5%, on so much of the principal amount and the subparagraph (A) amount as remains unpaid. This penalty is computed from the expiration of the 14 day period (s 221YHJ(1)(b)(ii)(B) - I shall call it 'the subparagraph (B) amount'). Penalties for failure to deduct 12 An eligible paying authority that fails to deduct the amount required, at the time of making the prescribed payment, must pay a penalty to the Commissioner under s 221YHH. Again, the penalty amount is in two parts. 13 First, there is a penalty equal to the amount that the eligible paying authority failed to deduct (s 221YHH(1)(a) - which I shall call ' the subparagraph (1)(a) amount'). Secondly, there is a penalty equal to 16% per annum (later, 13.5%) on so much of the undeducted amount as remains unpaid. This penalty is computed from the expiration of the period within which a deducted amount should have been remitted (s 221YHH(1)(b) - I shall call it 'the subparagraph (1)(b) amount'). Legal nature of penalties 14 An amount payable to the Commissioner under Division 3A is a debt due to the Commonwealth and payable to the Commissioner, and may be sued for and recovered in a court of competent jurisdiction by the Commissioner or Deputy Commissioner (s 221YHN(1)). It appears that the penalties fall due when the statutory ingredients of s 221YHJ or 221YHH (as the case may be) are satisfied. As far as I can ascertain, there is no statutory requirement for any levy or notice of assessment of penalties to be issued and served, and there is no period of time allowed for payment once the statutory ingredients are present. Commissioner's discretion to remit 15 The Commissioner has a discretion to remit these penalties in the circumstances stated in s 221YHL. Section 221YHL(1) permits the Commissioner to remit an interest penalty (the subparagraph (B) amount or the subparagraph (1)(b) amount) if he is satisfied of various stated matters relating to the conduct of the person concerned, or is satisfied that there are special circumstances. Section 221YHL(2) permits the Commissioner to remit a 'principal' penalty (the subparagraph (A) amount or the subparagraph (1)(a) amount) 'for reasons that he thinks sufficient'. 16 According to s 221YHT, a person who is dissatisfied with the Commissioner's decision relating to remission of a 'principal' penalty (that is, the subparagraph (A) amount or the subparagraph (1)(a) amount) may object against the decision under Part IVC of the Taxation Administration Act 1953 (Cth) ('the TAA'). It appears that there is no right of objection under the TAA from the Commissioner's decision as to remission of an 'interest' penalty. Nor is there any provision that renders Part IVC applicable to any dispute about the 'principal' and 'interest' penalties other than a dispute about the exercise of the Commissioner's discretion to remit the whole or part of the penalty." 16 And at paras [44] to [50]: "The Commissioner's discretion to remit a penalty 44 The fourth ground advanced by the plaintiff is that the Commissioner has not properly exercised his discretion to consider remission of penalties under s 221YHL. The Commissioner submits that I am unable to deal with this ground, for two reasons. The first is said to be that the exclusive procedure for ventilating this matter is by objection under Part IVC of the TAA. The second is that a challenge to the Commissioner's exercise of discretion on administrative law grounds, may be heard only in the Federal Court, having regard to s 9 of the Administrative Decisions (Judicial Review) Act 1977 (Cth). 45 In the Hoare Bros case the Commissioner issued notices of assessment for income tax and when payment was not made, he served a statutory demand for the tax. The taxpayer applied to set the demand aside on the ground that there was a genuine dispute as to the amount of the debt, since it had lodged an objection to one of the assessments and was seeking an extension of time to lodge an objection against another assessment. Section 177 of the Assessment Act states that the production of a notice of assessment is conclusive evidence of the due making of the assessment, but the notice of assessment was not produced in the proceedings and so there was no occasion for the application of s 177. 46 In those circumstances the Commissioner relied on ss 204 and 208, which respectively provide that income tax assessed is due and payable on the date specified in the notice of assessment, and that when it becomes due and payable, income tax is a debt due to the Commonwealth payable to the Commissioner. He also relied on ss 14ZZM and 14ZZR of the TAA for the proposition that the tax remained due and payable notwithstanding that the taxpayer had lodged an objection which might lead to a review by the Administrative Appeals Tribunal or an appeal to the Federal Court. 47 The Full Court observed (at 4169): 'The structure of the ITAA strongly suggests a legislative intent that the issue and service of a notice of assessment (after expiry of the appropriate period) creates a debt that is immediately due and payable, and that the assessment can be challenged only in the manner provided for by the TAA, Part IVC. Thus, unless there is some genuine dispute about the validity of a notice which has been duly served, there can be no genuine dispute about the existence or amount of the debt specified in the notice (assuming the requisite period has elapsed since service of the notice). A company, or other taxpayer, served with a notice of assessment, is entitled to challenge the assessment through the procedures laid down in the TAA, Part IVC. In the meantime, however, the tax must be paid.' 48 Their Honours subsequently observed (at 4172) that 'the mere fact that the company had objected to the assessments, or sought review of the Commissioner's decision before the Administrative Appeals Tribunal, did not establish that there was a genuine dispute as to the existence or amount of the relevant debt'. They said: 'The position is not altered by the fact (if it be such) that the company's objections to the notices of assessment, or its application to the Administrative Appeals Tribunal, raised genuinely arguable issues. Any such issues, or disputes, do not affect the character of the debt to which the statutory demand relates.' 49 Ireland J reached the same conclusion as to the effect of the taxation legislation, especially ss 14ZZM and 14ZZR of the TAA, in Deputy Commissioner of Taxation v Ho (1996) 32 ATR 269, in the context of an application for a stay of recovery proceedings. 50 The present case is different from the Hoare Bros case in one respect. There the debt claimed by the Commissioner was for unpaid income tax, governed by ss 204 and 208 of the Assessment Act (as well as s 177, had it been invoked), and Part IVC of the TAA (including ss 14ZZM and 14ZZR) applied comprehensively to any dispute about the assessments. In the present case ss 221YHH, 221YHJ and 221YHN(1) have a combined effect equivalent to ss 204 and 208 in the case of income tax (except that penalties fall due and payable without any process of assessment or time for payment). But Part IVC of the TAA applies only to a dispute which arises about the exercise of the Commissioner's discretion to remit the 'principal' penalties. It is arguable that if the taxpayer contests his liability to pay a PPS penalty for a reason which does not bring into question a decision of the Commissioner with respect to remission of a 'principal' penalty, then there is no exclusive procedure for dealing with the objection and consequently the reasoning in the Hoare Bros case is inapplicable. If the taxpayer's grounds for challenge would lead to the conclusion that the amount claimed by the Commissioner does not fall within the statutory provisions which render a penalty due and payable, then arguably there is a dispute with respect to the existence of the penalty debt, which the taxpayer could raise as a basis for setting aside the Commissioner's statutory demand. But this is not so in the present case. The first three of the plaintiff's grounds for contending that there is a genuine dispute with respect to the existence of the debt have not been made out on the facts, for reasons which I have given. The fourth ground relates to the Commissioner's decision regarding remission of penalty, objection to which is governed by Part IVC of the TAA. To the extent that the plaintiff relies on this fourth ground, it must fail upon the application of the decision in the Hoare Bros case." 17 However, the plaintiff submitted that the statements made by Austin J in para [50] overlooked the decision of Hill J in Trylow v Commissioner of Taxation (2004) ATC 4406; (2004) 55 ATR 408; [FCA] 446 which was not brought to his Honour's attention. In Trylow Hill J stated at [4]: "Section 221EEA [sic] forms part of the provision of the Act concerned with Group Tax popularly then called 'Pay As You Earn' tax ('PAYE'). A person ('an employer') who paid salary or wages as defined to an employee was required to deduct a prescribed amount from the salary or wages and pay it to the Commissioner. The legislative scheme is the subject of a fuller discussion in Stergis v Commissioner of Taxation (1989) 86 ALR 174. Failure to deduct the prescribed amount brought with it the consequence that the Act imposed upon the employer a penalty. The penalty was not imposed by the Commissioner. It arose not as a consequence of any process of assessment. It was a consequence of the Act itself." 18 Section 221EAA(1) of the ITAA relevantly reads: "Where an employer … refuses or fails, at the time of paying salary or wages to an employee, to deduct from the salary or wages the amount required to be deducted under this Division, the employer is liable to pay to the Commissioner, by way of penalty…" 19 Section 221EAA(1) of the ITAA relates to PAYE whereas s 221YHH(1) of the ITAA relates to prescribed payments. Similarly s 221YHH(1) of the ITAA reads: "If an eligible authority makes a prescribed payment to a payee and does not deduct from the payment the amount required to be deducted under this Division the eligible paying authority is liable to pay the Commissioner by way of penalty." 20 The plaintiff submitted that the penalty arises from the ITAA itself and that there is no discretion to be exercised by the Commissioner in imposing the penalty. It is the next step that brings into play the Commissioner's discretion, namely the application to remit the penalty. It is unlike s 177 of the ITAA where the Commissioner is called upon to exercise discretion in making an assessment. 21 Ms Susanne Vihm of the tax office deposed that she believes the defendant is indebted to the plaintiff in the sum of $4,145,650.64 in respect of the cause of action that was commenced in the amount of $3,750,567.89 plus further general interest charge calculated since the date of commencement of proceedings of $416,899.85, and that since commencement of this action credits have accrued to the amount of $21,817.10 reducing the amount owing to $4,145,650.64. 22 It is my view the same reasoning as in Trylow, is applicable to s 221YHH(1) of the ITAA and the failure to deduct the prescribed amount brings with it the consequence that the ITAA imposes upon an eligible paying authority a penalty. The penalty was not imposed by the Commissioner but rather as a consequence of the ITAA (s 221YHH(1)). That being so, the plaintiff is liable to pay the penalty and interest. However, this does not accord with the view expressed by Austin J referred to below. Is debt due and payable when it is subject to legal challenge 23 The next issue that arises is whether the debt remains due and payable when it is the subject of a legal challenge. Section 221YHN(1) of the ITAA provides that the debt due may be sued for and recovered by a Court competent jurisdiction (this is similar to s 255J of the TAA). Section 221YHT(2) of the ITAA permits a person who is dissatisfied with a decision in relation to the remission may object against the decision in the manner set out in Part IVC of the TAA. In Part IVC of the TAA, s 14ZZ provides that if a person is dissatisfied with the Commissioner's objection decision, the person may apply to the Administrative Appeals Tribunal if it is reviewable or to the Federal Court if the decision is appealable. Sections 14ZZM and 14ZZR of the TAA provide that the fact that a review or appeal is pending in relation to a taxation decision does not in the meantime interfere with, or affect, the decision, and any amount which is payable by virtue of the decision may be recovered as if no review or appeal were pending. The Commissioner's decision not to remit the penalty is governed by Part IVC of the TAA (Moutere para 50). If an objection were to be made against the commissioner's decision with respect to remission of "principal" penalties under s 221YHL of the ITAA, the lodgement of the objection would not remove the taxpayer's obligation to pay the unremitted part of the penalties in the meantime. 24 However, Austin J says that if it is his or her liability to pay a PPS penalty for a reason which does not bring into question a decision of the Commissioner with respect to remission of a "principal" penalty, there is no exclusive jurisdiction for dealing with the objection and consequently the reasoning in the Hoare Bros Pty Ltd v Deputy Commissioner of Taxation (1996) 62 FCR 302; (1996) 135 ALR 677; (1996) 19 ACSR 125; (1996) 14 ACLC 394; (1996) 96 ATC 4163; (1996) 32 ATR 148; case is inapplicable. On the approach adopted by Austin J, it follows that it may be arguable that the amount claimed by the Commissioner does not fall within the statutory provisions that render a penalty due and payable then there is a dispute with respect of the existence of the penalty debt. However, this approach is not in harmony with the approach taken by Hill J in Trylow. Maybe it could be argued that there was no payment liable to be made under the contracts. So it was not for the above statement by Austin J, I would have entered summary judgment. But in the light of this conflict between Trylow and Moutere, I cannot say the defendant's case is hopeless. Issue estoppel or res judicata 25 On 1 June 2001 the defendant lodged an application for review of the Commissioner's objection decision at the AAT. The defendant's reasons for lodging the application were that "the decisions to impose and/or not remit in full penalties in respect of the years of income ended 30 June 1994-2000 inclusive are wrong". Thus these proceedings sought to cavil with both the imposition of the penalties and the Commissioner's decision not to remit those penalties. 26 The application was set down for hearing before the AAT on 11 to 14 November 2002. On 5 November 2002 the defendant lodged written notification at the AAT requesting that the application be withdrawn. The effect of the withdrawal under subsection 42A(1B) of the AAT Act is that the AAT is taken to have dismissed the application without proceeding to review the decision. On 6 November 2002 the AAT sent a letter of official notification of the withdrawal to the Commissioner. 27 The plaintiff referred to an English decision, Baker v Staffordshire County Council [1996] 2 All ER 748. The plaintiff was a teacher who was dismissed and lodged a claim in the Industrial Commission. She elected to withdraw her claim and the Industrial Commission dismissed the proceedings without hearing any evidence or argument. The argument against any estoppel was that Mrs "Barber's claim for redundancy payment was not barred by any principle of res judicata or by any cause of action or issue estoppel. The order of the industrial tribunal dated 5 May 1993 was a purely administrative act. The tribunal, though in theory exercising a judicial discretion, was bound to dismiss Mrs Barber's claim on withdrawal because she could not satisfy the qualifying conditions set out in the 1978 Act. The tribunal heard no evidence and made no adjudication on an issue of either law or fact. It was held that there was nothing in the principles of cause of action or issue estoppel which stipulated that they would only apply where a tribunal has given a reasoned decision on the issues and facts in the previous litigation. The fact that no evidence was heard does not prevent that decision operating by way of res judicata. 28 However, in Australia the law is not so clear. In Cross on Evidence, the learned author at Chapter 3, Estoppel, 5030 states: "The controversy is acute in relation to administrative tribunals. There are statements that because of their administrative character they cannot create issue estoppels, and other discussions indicating doubt and consciousness of the difficulties attending the subject. But there is also old and new authority pointing the other way. Lord Bridge stated this principle "the presumption … must be that where the statute has created a specific jurisdiction for the determination of any issue which establishes the existence of the legal right, the principle of res judicata applies to give finality to that determination unless an intention to exclude that principle can properly be inferred as a matter of construction of the relevant statutory provisions." 29 The case was not determined upon its merits. Further, s 42A(6) of the AAT Act provides that even after an order for dismissal is made the application can be made for the matter to be reinstated. In Mulheron v Australian Telecommunications Corporation (1991) 23 ALD 309 President O'Connor (at 314) held that s 42A of the AAT Act provides simply for the dismissal of an application, that is, termination of the proceedings on the application. The decision to which the review was sought remained unchanged and it follows that an applicant may bring a fresh application to review that decision. It is my view it is arguable that the principle of finality cannot be properly inferred in these circumstances. Thus it is arguable that proceedings in this Court are not the subject of issue estoppel or res judicata. 30 As there is an arguable case that it may be able to claim that the amount claimed by the Commissioner does not fall within the statutory provisions and that put into issue the existence of the penalty debt, the plaintiff's application for summary judgment fails. Further, it is arguable that no issue estoppel or res judicata arises from the decision of the AAT. The notice of motion filed 12 December 2003 is dismissed. 31 Costs are discretionary. Costs normally follow the event. The plaintiff is to pay the defendant's costs as agreed or assessed. Orders 32 The Court orders: (1) The plaintiff's notice of motion filed 12 December 2003 is dismissed. (2) The plaintiff is to pay the defendant's costs as agreed or assessed. ********** Last Modified: 07/02/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.