Branson J, as Convenor of the NSW User
Group Liaison Committee, welcomed participants to the
meeting and outlined the background to the calling of
the meeting and the connection of the Tax Users Group
with the NSW Liaison Committee. Thereafter Branson J handed
over to Conti J as convenor of the Tax Panel. Branson
J then left for another meeting.
Conti J invited participants to raise
issues for query or discussion, and asked the meeting
if cases were coming on quickly enough for hearing, and
if our procedures were adequate, or attracted criticism.
There followed discussion on the docket
system and the issue of flexibility in allocating hearing
dates. Hill J initiated discussion on the use of the Statement
of Fact and Contentions and its role in more efficiently
identifying issues.
The issue was raised as to whether
tax cases likely to involve credibility of the taxpayer
or his or her witnesses should preferably be tried orally,
rather than by the affidavit evidence. Emmett J said that
the present system is advantageous to dishonest witnesses,
who are able to "mould" their testimony by carefully
crafted affidavits.
Lindgren J said that he requires an
exchange of submissions between parties prior to the hearing
as to likely issues of law to arise. That can reduce the
scope of factual disputes. Hill J said that a small percentage
of matters in this Court involve factual disputes.
Lindgren J spoke about a number of
matters of general Court practice:
Consent orders can be used to avoid
the costs and delay associated with a court appearances.
Solicitors on the record may sign consent orders. If
a party is unrepresented however, a Judge might have
concerns about that party's understanding of what is
being agreed to. In these circumstances a Judge might
want to deal with the order in a directions hearing
involving a litigant in person. There are slightly different
procedures depending on whether a consent order is dealt
with under rules 10 or 10A of Order 35. If the consent
orders are complex, it might be a good idea to send
an advanced copy electronically to the Judge's Associate
and to ask whether the orders are in a form which the
Judge would be prepared to make in chambers, or whether
the Judge would prefer the form of orders to be debated
in court.
Subpoenas are returnable every Wednesday
before Registrars. Leave must be granted by the Court
to issue subpoenas, but may be given generally at the
first directions hearing. It is a good idea to ask for
general leave at the first directions hearing. Although
the parties may ask the Judge for a specific Wednesday
so that, conveniently, they will attend at the same
time, subpoenas may be made returnable on any Wednesday
of a party's choice without the necessity of having
a particular Wednesday allocated by the Registry or
by a Judge.
Video and telephone conferencing
are available where interstate practitioners are involved,
and the use of these can save travel and agency costs,
particularly for directions hearings, or if evidence
is likely to be uncontroversial. This facility might
be of particular interest to NSW practitioners where
the proceeding's "proper place" is another
Federal Court District, such as Victoria.
Conti J raised with practitioners the
suggestion that if matters with the same issues were being
litigated in other states at the same time, the Court
should so be informed. Practitioners mentioned that the
ATO has a register of scheme cases or a similar register
of matters coming on for hearing and suggested access
to it.
Hill J raised for discussion the suggestion
that declarations may be sought from the Supreme Court
in the tax area (eg. a declaration that tax not be payable),
as a means of the Supreme Court gaining a share of tax
litigation in New South Wales.
Discussion was held of the frequency
of meetings and the consensus was 6 monthly. Conti J invited
agenda items for future meetings to be forwarded to his
chambers.
The meeting closed at 6.05pm.
USER GROUP MEETING - TAX
LIST OF ATTENDEES
Thursday 1 May 2003
Lyndsey Searle Blake Dawson Waldron
Stephen McMillan of Counsel Wentworth Chambers
John Durack SC Wentworth Chambers
David Castle Dibbs Barker Gosling
R. Williams Allens Arthur Robinson
Catherine Leslie AGS
David McGovern SC 11th Floor, St James Hall
Chris Tappere and Sarah Dunn Freehills
Brendan Sullivan QC Wentworth Chambers
Mr Momsen of Counsel
Federal Court of Australia
Hill J
Branson J
Lindgren J
Sackville J
Emmett J
Hely J
Conti J
Jenny Hedge
Geoff Segal
Tony Tesoriero
Stephen Williams
