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Taxpayers NS v Fiji Revenue and Customs Authority [2014] FJTT 3; ITA18.2013 (19 August 2014)

IN THE STATUTORY TRIBUNAL, FIJI ISLANDS
SITTING AS THE TAX TRIBUNAL

Decision
Section 89 Tax Administration Decree 2009

Title of Matter:

TAXPAYER NS
(Applicant)

v

FIJI REVENUE AND CUSTOMS AUTHORITY
(Respondent)

Section: Section 82 Tax Administration Decree 2009
Subject: Application for Review of Reviewable Decision
Matter Number(s): Matter No: ITA 18 of 2013
Appearances: Mr. A. Naco, Naco Chambers; Ms. L. Volau, Mamlakah Laywers
Ms. R Malani, FRCA Legal Unit for the Respondent
Date of Hearing: 19 August 2014
Before: Mr Andrew J See, Resident Magistrate

Date of Decision: 19 August 2014

FAILURE TO PROSECUTE PROCEEDINGS IN A TIMELY FASHION – ORDER XXX RULE 2, MAGISTRATES COURT RULES 1978

1. The Tribunal has been approached by an agent from Mamlakah Lawyers of Gordon Street, Suva to seek further time to file Submissions in this matter on the basis that the Applicant is not ready to proceed. The Counsel, Ms. Volau has indicated that the solicitor who is presently on the record, Mr. Naco is otherwise attending a hearing in Lautoka. Ms. Malani for the Respondent on the other hand is ready to proceed.
   
2. This matter was first called on before the Tribunal on 9 December 2013 and there was no appearance for the Applicant. It was relisted on 7 March 2014 when it was foreshadowed by the Tribunal to both parties, what would be involved in prosecution of their respective cases.
   
3. On 17 March 2014, the parties were issued with Directions giving each 28 days to file and serve Submissions. On that occasion the parties were informed that the High Court Registry would liaise in relation to an agreed trial date.
   
4. Despite those directions the parties were not ready to proceed after the expiration of those 28 days. On 24 June 2014, the matter was set down for hearing on 15 July 2014 at 9.00 am.
   
5. On 15 July 2014, the parties were encouraged by the Tribunal to consider the possibility of resolving the matter independently of the Tribunal and to report back on the progress, or in any other event be prepared for the continuation of the hearing on the 21 July 2014 at 9.00 am.
   
6. The matter was part heard on 21 July 2014 and adjourned for further hearing on 22 July 2014. At the conclusion of that day it was agreed that the matter should be further adjourned to allow Final Submissions to be provided to the Tribunal on 19 August 2014.
   
7. On 4 August 2014, a Notice of Listing was sent to both parties notifying of the hearing date on 19 August 2014 at 2.00 pm. Due to possible disruptions to the sittings of the Tribunal on that date, on 6 August 2014 a Notice of Cancellation of the listing was emailed to both parties. As it transpired, the circumstances that suggested the sittings were no longer able to be held on that date, no longer presented and in response, on 7 August 2014, an email was sent to both parties confirming the call date that the matter would proceed as originally envisaged as per the Notice of Listing. On 12 August 2014, a further notice was served to both parties confirming the setting down of that date. That is, the Final Submissions were to be made on 19 August 2014 at 2.00 pm.
   
8. I am advised by the registry staff that in addition to those communications, registry staff telephoned Naco Chambers and confirmed that the matter would proceed on 19 August 2014.
   
9. Ms. Volau indicates that she received instructions today at 10 am. Clearly the Applicant has had 4 weeks in which to prepare for the closing of its case and the finalizing of its presentation of its closing submission. Despite some possible uncertainty that could have been created by virtue of the cancellation but then within less than 24 hours, the re-enlivening of the hearing date, there is no reason that is presented by Ms. Volau which would otherwise justify the non-appearance of Mr. Naco as the solicitor on the record.
   
10. The Tax Administration Decree 2009 at Section 21 (1) places the onus of proof on the Applicant to prove its case before the Tribunal where it is alleged that an assessment is excessive. This is also a case where the Applicant taxpayer has failed to lodge any tax return for 7 years. The Tribunal rejects the Submissions of Ms. Volau for any extension of time. It is clear that Applicant taxpayer has failed to carry out its duty to the Tribunal to prosecute its case. Having regard to its obligations to the Tribunal and to the inconveniences that would otherwise occur to the Respondent, the Tribunal considers the matter should be struck out in accordance with Order XXX Rule 2 of the Magistrates Court Rules 1978. The conduct of the Applicant Taxpayer shows a disregard in bringing this matter to some finality. The Tribunal is not satisfied that there is any good reason why the further adjournment of the matter should be granted. On that basis the Application for Review that was filed in the High Court registry in Suva on 28 November 2013 is dismissed.
    
11. The Respondent has sought $500.00 costs to be paid by the Applicant. The Tribunal orders accordingly.
    

Decision

This Tribunal Orders that:

(i) The Application is dismissed.

(ii) Applicant to pay Costs in the sum of $500.00 within 14 days to the Respondent.

Mr Andrew J See
Resident Magistrate