Full Court to consider most, if not all, of the material that
was placed before the Tax Court , and to evaluate the extent
to which the Tax Court failed in its duty of consideration.
The material placed before the Tax Court was substantial . It
amounted to some 6,543 pages of documents . That
excludes , of course, the heads of argument filed by both
parties on appeal , which are themselves substantial.
The record of the proceedings before the Tax Court
was finally made available in full to us just a week ago on
Tuesday, 19 May 2026 . This need not have been a difficulty
since until last Thursday, 21 May 2026 , we were under the
impression that the material in the appeal record had been
compressed to a three -volume core bundle, which was
uploaded to CaseLines on 13 April 2026. That material was
placed before us in hardcopy, albeit a few days late .
However, last Friday, 22 May 2026, a 32- volume core
bundle, describing itself as the appellant’s core bundle , was
uploaded to CaseLines . That bundle runs to 3,862 p ages .
It accordingly multiplied by several times the volume of
material we had until that point been told that the parties
expected us to absorb before the appeal was called today,
on Tuesday, 26 May 2026.
Given that the essence of the appeal is that the Tax
Court failed in its duty of consideration, Ms Dreyer quite
rightly asserted in her practice note, which was provided at
the request of the court on Saturday, 23 May 2026, that all
of the material in the 3,862 page core bundle would have to
be absorbed by the court in advance of this hearing.
As should be abundantly clear by now, it was
impossible for the court to absorb that material in the time
between the material being uploaded and this appeal being
called . Ms Dreyer adverted to the fact that in an earlier
version of the appellant's practice note, there is a list of
material that the court was expected to read before the
appeal was called and that we would have been in a
position to read that material much earlier than last
Thursday . There are two difficulties with that submission.
The first is that we were entitled to assume, and we did
assume, that the relevant material had been compressed
into the three -volume c ore bundle that had been uploaded
to CaseLines in April of this year . The second difficulty is
that the entire record itself, to which the material contained
in the appellant's earlier practice note referred, was not
uploaded until last Tuesday .
Ms Dreyer advanced various explanations of why the
complete record was not uploaded before last Tuesday and
made the submission that the amount of material actually
uploaded last Tuesday was relatively small . But the
explanation Ms. Dreyer advanced is not supported on
affidavit by the appellant's attorneys , and we cannot, for
that reason, have regard to it.
Si mply put, on CaseL ines, the final volumes of the
record were only uploaded last Tuesday, and the impression
created was that this was the date on which the full record
was made available to us . As I have already said, that
need not have been a problem . Had the core bundle in this
appeal really been the three -volume core bundle we were
led to believe it was until last Thursday, we would doubtless
have been in a position to absorb it. But, as it turns out, we
were actually expected to absorb a further 32 volumes,
which were only made available to us last Friday
electronically and in hardcopy yesterday.
For all those reasons, we cannot fairly entertain the
appeal today . It would not be fair to the appellants, whose
case depends on us being fully conversant with a large
quantity of material with which we are not conversant . N or
would it be fair to the respondents, who have quite
understandably been left to wonder which material the court
will have to engage with and which material on the record is
going to be discussed at the hearing .
There may be cases in which it is appropriate for court
to sit back and let counsel's submissions wash over us, but
this is not one of those cases. In order to fairly prepare for
this case and to give both parties a fair hearing, it would
have been necessary for us to read the information that was
going to be referred to by counsel well in advance and to
have formulated sensible questions about it . For the
reasons I have given, that material has not been read and
we have no sensible questions about it . Plainly , the appeal
must be postponed.
On the question of costs, it seems to me inarguable
that the failure to place the court in possession of the
material it needs is the failure of the appellant and his
attorneys . The failure to place us in possession of that
material is the cause of the postponement that has to be
ordered today . On that basis alone, the appellant should
pay the wasted costs.
We do not accept Ms Dreyer’s submission that the
court that ultimately hears this appeal on its merits is better
placed than we are to make an order as to the wasted costs
of today. The lateness of the material which we were
expected to absorb bit us hardest and is more keenly felt
and understood today than it will be by the court that
ultimately hears the merits of the appeal . Given that we are
intimately acquainted with the prejudice that has been
caused to us and to the respondent , we are in the best
position to decide where the costs of undoing that prejudice
should fall .
Finally, the parties were agreed that before a date for
the hearing of this appeal is applied for again, a joint core