The NSW Court of Appeal has unanimously dismissed an application by a director to have set aside its prior decision in Power v DCT [2013] NSWCA 428 that the director was liable for a directors’ penalty of some id=”mce_marker”m imposed on him by a director’s penalty notice (DPN) that was issued under s 269-25 of the Taxation Administration Act 1953.

The director sought the current application on the basis that the Court had failed to properly deal with an argument he had advanced in the matter. Originally, the Court of Appeal had found that while the DPN had failed to refer expressly to the fact that the obligation arose under Div 269, it had nevertheless clearly informed him that he was liable because of statutory provisions associated with s 269-25 and that the notice, therefore, effectively called his attention to Div 269 as required.

In dismissing the director’s current application, the Court first noted that it had the power to re-open a judgment if it was convinced it had previously proceeded on a misapprehension as to the facts or the law, or that the interests of justice so required it.

However, in dismissing the application, the Court found that the director had not endeavoured to identify an accident or oversight that would occasion an injustice or a misapprehension on the part of the Court as to the facts or the law. It also emphasised that the mere absence of a reference in reasons for judgment to a submission made by a party, or to cases cited by that party in support of the submission, did not mean the Court had not given consideration to the submission.

(Power v DCT (No 2) [2014] NSWCA 77, NSW Court of Appeal, Barrett, Ward, Emmett JJA, 25 March 2014.)

[LTN 61, 31/3/14]