Panayi v Deputy Commissioner of Taxation [2017] NSWCA 93

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Panayi v Deputy Commissioner of Taxation [2017] NSWCA 93 Hearing dates: 19 April 2017 Decision date: 10 May 2017 Before: Meagher JA at [1]; Leeming JA at [62]; Simpson JA at [81] Decision: Appeal dismissed with costs. Catchwords: TAX AND DUTIES – income tax and related legislation – Taxation Administration Act 1953 (Cth) – where company fails to remit tax withheld from employees to Commissioner of Taxation – where penalty imposed on appellant as director – whether appellant was appointed or acted as director – whether illness or some other good reason made it unreasonable to expect appellant to take part in the management of the company – whether unamended form of s 269-30 applied to remit appellant's liability

EVIDENCE – admissibility – hearsay rule – where ASIC decision and reasons for disqualifying director from managing companies admitted over separate and erroneous objection – whether business records exception applied

STATUTES – acts of parliament – where conditions for remission of liability not satisfied before amendment – whether presumption against retrospectivity engaged – whether meaning of provision governing application of amended form of s 269-30 is clear and unambiguous Legislation Cited: Australian Securities and Investment Commission Act 2001 (Cth) s 102 Civil Procedure Act 2005 (NSW) s 56 Corporations Act 2001 (Cth) ss 5B, 206F, 533, 1274B Evidence Act 1995 (NSW) ss 3, 59, 69, 91 Taxation Administration Act 1953 (Cth), Sch 1, ss 269-15, 269-20, 269-30, 269-35 Tax Laws Amendment (2012 Measures No 2) Act (2012) (Cth), s 3, Sch 1, Div 3, Items 8, 9 Uniform Civil Procedure Rules 2005 (NSW) rr 51.36, 51.53 Cases Cited: Abbott v Minister for Lands [1895] AC 425 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 Colley v Futurebrand FHA Pty Ltd (2005) 63 NSWLR 291; [2005] NSWCA 223 Deputy Commissioner of Taxation of the Commonwealth of Australia v Woodhams (2000) 199 CLR 370; [2000] HCA 10 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 Federal Commissioner of Taxation v SNF (Australia) Pty Ltd (2011) 193 FCR 149; [2011] FCAFC 74 Gray t/as Clarence Valley Plumbing Services v Ware Building Pty Ltd [2013] NSWCA 271 Maxwell v Murphy (1957) 96 CLR 261 Perish v R (2016) 92 NSWLR 161; [2016] NSWCCA 89 Roche v Deputy Commissioner of Taxation [2015] WASCA 196 Seltsam Pty Ltd v McGuinness (2000) 49 NSWLR 262; [2000] NSWCA 29 Category: Principal judgment Parties: Peter Panayi (Appellant) Deputy Commissioner of Taxation (Respondent) Representation: Counsel: P E King (Appellant) J Mitchell (Respondent)