Progress finally - An application to set aside a decision the Tax Commissioner obtained by fraud can proceed
The Tax Commissioner's legal representatives had been pressing for the hearing of an application for leave to appeal from a judgement of Justice Wigney in December 2023 to go ahead on 4 September 2024.
The alternative, simpler application, to set aside that judgment on the ground that it had been obtained by fraud was delayed and derailed, eventually interrupted by a Registrar refusing to allow it to be filed for reasons that were plainly wrong.
As the 4 September 2024 hearing date loomed, the Federal Court delivered a judgment on 28 August 2024 setting aside the decision of the Registrar refusing to accept the application to set aside Justice Wigney's judgment on the ground that it had been obtained by fraud:
"THE COURT ORDERS THAT:
- The decision by the first respondent [Registrar Tom Morgan] on 8 July 2024 to reject the documents sought to be filed by the applicant on 23 June 2024 be set aside."
Judgment of Justice Kennett dated 28 August 2024.
In a nail-biting frenzy of emails pushing for the hearing on 4 September 2024 to go ahead - that would have made the decision of 28 August 2024 of academic interest only - the Tax Commissioner's legal representatives' efforts were finally stopped by filing a notice to withdraw the application for leave to appeal.
|
Number |
Date/Time |
Description |
|---|---|---|
|
1 |
27/08/2024 |
The FCA emails advice that Justice Kennett will deliver judgment in ACD47/2024 on 28/08/2024 at 10:15 AM. |
|
2 |
28/08/2024 |
The FCA emails Justice Kennett’s reasons in Dunstan v Morgan [2024] FCA 982. |
|
3 |
28/08/2024 |
Colin Dunstan emails Justice Horan and Ashurst Australia for ACD72/2023 requesting the appointment on 29/08/2024 to settle the Application Book index and the hearing on 4/09/2024 be stood over to a date to be fixed. |
|
4 |
29/08/2024 |
Justice Horan’s Associate emails parties advising the hearing in ACD72/2023 on 4/09/2024 will go ahead. |
|
5 |
29/08/2024 |
Colin Dunstan emails Justice Horan’s Associate and Ashurst Australia advising he has lodged a notice to withdraw his application in ACD72/2023 that was set down for hearing on 4/09/2024. |
|
6 |
29/08/2024 |
The FCA emails advice that the Registrar is of the view there is no reason that the documents Colin Dunstan sought to be filed on 23 June 2024 should be refused for filing. |
|
7 |
29/08/2024 |
The FCA emails to parties in ACD72/2023 advising that because Colin Dunstan has filed a notice to withdraw the application, the appointment before the Registrar on 29/08/2024 and the hearing before Justice Horan on 4/09/2024 will not go ahead. |
The application that was:
- lodged on 23 June 2024, and
- was rejected for filing on 8 July 2024 ...
was finally accepted as filed at 5:00 pm on 30 August 2024:
Form 15 — Originating Application - lodged 30/08/2024
FormNCF1 —Concise Statement - lodged 30/08/2024
Form 16 —Genuine Steps Statement - lodged 30/08/2024
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