Lo and Chief Commissioner of State Revenue (No 2) [2011] NSWADT 306

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Lo and Chief Commissioner of State Revenue (No 2) [2011] NSWADT 306 Hearing dates: Decision on the papers Decision date: 22 December 2011 Jurisdiction: Revenue Division Before: J Block, Judicial member Decision: The Applicant must pay to the Respondent one half of his costs as agreed or as taxed Catchwords: whether Applicant had a tenable case - consideration of case law in the light of the evidence Legislation Cited: Administrative Decisions Tribunal Act 1997 Cases Cited: Chief Commissioner of State Revenue v Mesiti [2003] NSWADTAP 57; Chief Commissioner of State Revenue v Aldridge & Anor (RD) [2003] NSWADTAP 50; ; Giris Pty Ltd v Chief Commissioner of Taxation of the commonwealth (1968) 119 CLR 365; Federal Commissioner of Taxation v GM Swift and ors 89 ATC 510; AT v Commissioner of Police NSW 2010 NSWCA 31 Category: Costs Parties: Patrick Pak Kit Lo (Applicant) Chief Commissioner of State Revenue (Respondent) Representation: Counsel D Miller SC (Applicant) K Richardson (Respondent) Gadens (Applicant) Crown Solicitor (Respondent) File Number(s): 106045

REasons for decision

Part A Preliminary and Introduction 1The Respondent, who is usually in these reasons referred to as "the Chief Commissioner", seeks an order for costs in accordance with section 88 of the Administrative Decisions Tribunal Act 1997 ("the ADT Act") arising from the decision of the Tribunal issued on 19 September 2011 (which is referred to as "the principal decision") and following a hearing which took place on 14 and 15 July 2011; the Tribunal refers in particular to clause 38 of the principal decision as to the circumstances in which it is called upon to decide the costs question separately. 2The Chief Commissioner furnished his submissions on costs ("RSC") on 14 October 2011; in accordance with clause 38 of the principal decision the Applicant was obliged to furnish his submissions as to costs within the period specified. Having noted an appeal against the principal decision the Applicant did not furnish his costs submissions within the period specified but subsequently delivered his costs submissions ("ASC") on 16 December 2011 after a direction requiring him to do so by the Tribunal. 3The events which took place leading up and including the hearing which gave rise to the principal decision were in some respects unusual; in this context; (a) this matter was originally scheduled to be heard on 20 October 2010. In respect of that hearing the Applicant furnished one witness statement only by his solicitor Chung Yun Lo; that witness statement contained a number of statements of fact preceded by words to the effect that the statement was made on instructions. That witness statement was clearly of little probative value; the matter was then postponed by M Hole JM who granted an order for costs against the Applicant. That costs order is referred to as "the original costs order"; ACS makes it clear that the Applicant does not contest the original costs order and that order is in no way affected by this decision. (b) this matter was rescheduled for hearing on 14 and 15 July 2011. The Applicant applied for the matter to be determined on the papers That application which is referred to in these reasons as the "papers determination application" was made on the basis that the Tribunal was in possession of all of the information and evidence which it needed for this purpose and including the witness statements which were at the hearing admitted as exhibits A1 (the witness statement of the Applicant's father, Wai Kong Lo), A2 (the witness statement of the Applicant's wife, Annette Wing Yan Yu) and A3 (the witness statement of the Applicant himself). The papers determination application was not made in consequence of the illness from which the Applicant suffers and which is referred to in clause 8 of the principal decision; the papers determination application was opposed by the Chief Commissioner and was refused; as set out in the principal decision that application was in the view of the Tribunal misconceived. (c ) The Applicant was represented at the hearing by Gadens, an eminent firm of solicitors, and by Mr. D Miller SC of counsel; if it is fair to say that the Applicant's representation was inadequate prior to their appointment this was not so after their appointment. . (d) Oral evidence was given at the hearing by the Applicant's father and the Applicant's wife both of whom were cross-examined and, in the case of the Applicant's wife in some considerable detail as to trips by her as a visitor to Australia from Hong Kong and where she and the Applicant were resident during the relevant years; (the term "relevant years" and other terms defined in the principal decision have unless the context requires otherwise the same meanings when used in this decision).. (e) The Applicant was then called to give evidence. Although he was educated in Australia both at high school and at university level an interpreter was at his request provided for his assistance. It became clear at an early stage of his cross-examination that he was not able to continue. On the following day the parties furnished the Tribunal with a statement of agreed facts which are set out in full in the principal decision. Time was then allowed in respect of final submissions which were duly furnished 4Section 88 of the ADT Act reads as follows: (1) Each party to proceedings before the Tribunal is to bear the party's own costs in the proceedings, except as provided by this section. (1A) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that it is fair to do so having regard to the following: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings by conduct such as: (i) failing to comply with an order or direction of the Tribunal without reasonable excuse, or (ii) failing to comply with this Act, the regulations, the rules of the Tribunal or any relevant provision of the enactment under which the Tribunal has jurisdiction in relation to the proceedings, or (iii) asking for an adjournment as a result of a failure referred to in subparagraph (i) or (ii), or (iv) causing an adjournment, or (v) attempting to deceive another party or the Tribunal , or (vi) vexatiously conducting the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties , including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) any other matter that the Tribunal considers relevant. (2) The Tribunal may: (a) determine by whom and to what extent costs are to be paid, and (b) order costs to be assessed on a basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any other basis. (3) However, the Tribunal may not award costs in relation to proceedings for an original decision unless the enactment under which the Tribunal has jurisdiction to make the decision provides for the awarding of costs . (4) In this section, "costs" includes: (a) costs of or incidental to proceedings in the Tribunal , and (b) the costs of or incidental to the proceedings giving rise to the application , as well as the costs of or incidental to the application .