Anthony Sgroi v Deputy Commissioner of Taxation
[2019] VSCA 48
•1 March 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2018 0118
| ANTHONY SGROI | Applicant |
| v | |
| DEPUTY COMMISSIONER OF TAXATION | Respondent |
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| JUDGES: | WHELAN AP |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 1 March 2019 |
| DATE OF JUDGMENT: | 1 March 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 48 |
| JUDGMENT APPEALED FROM: | Unreported (Judge Macnamara) |
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APPEALS – Application for leave to appeal – Application referred to single judge – Proposed grounds no real prospects of success – Application dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| Applicant | In Person | |
| Respondent | Mr T Connard | Deputy Commissioner of Taxation |
WHELAN AP:
By an application dated 13 September 2018, Mr Sgroi seeks leave to appeal a decision of Judge Macnamara in the County Court on 1 August 2018. His application was, at least on one view, out of time, but he was granted an extension of time by the Judicial Registrar.
Judge Macnamara ordered summary judgment against Mr Sgroi. The proposed grounds in Mr Sgroi’s application are that s 55ZF of the Judiciary Act 1903 (Cth) was breached, and that a request which he made for a contested hearing was denied.
The application was referred to me by the Judicial Registrar under Rule 64.15(1) of the Supreme Court (General Civil Procedure) Rules 2015 and I directed that an oral hearing be held under Rule 64.15(2). That oral hearing was held this morning.
A person cannot bring an appeal without leave. This is provided for by s 14A of the Supreme Court Act 1986. Under s 14C, the Court of Appeal may grant an application for leave only if it is satisfied that the appeal has a real prospect of success.
In this context, a real prospect means a prospect other than one properly described as ‘fanciful’.[1]
[1]Kennedy v Shire of Campaspe [2015] VSCA 47 [12].
Mr Sgroi was a director of a company, CBD Concreting Pty Ltd. The Deputy Commissioner of Taxation issued proceedings against him in the County Court, claiming that he was liable to pay amounts withheld by the company for taxation obligations of employees, which were not remitted to the Australian Tax Office. The sum claimed against Mr Sgroi was $156,362.21 and his liability was alleged to arise under s 269-15 of schedule 1 to the Taxation Administration Act1953 (Cth) (‘the Act’).
Mr Sgroi filed a defence to the statement of claim in which he either did not admit or denied the substantive allegations. The only matter of substance raised in his defence was that the Deputy Commissioner had not given him a notice that was required to be given under s 269-25 of schedule 1 to the Act.
By a summons of 4 July 2018, the Deputy Commissioner sought summary judgment against Mr Sgroi under s 63 of the Civil Procedure Act 2010 and Rule 22.08 of the County Court Civil Procedure Rules 2008.
In proceedings of this kind, the Deputy Commissioner has a number of means of proof that are provided for by schedule 1 of the Act.
Under s 255-45, a certificate setting out the details of an alleged liability is prima facie evidence of those matters in a proceeding to recover a tax-related liability. Under s 255-50, in a proceeding to recover a tax-related liability, a statement or averment about a matter in the plaintiff’s complaint, claim or declaration is prima facie evidence of that matter.
On the application for summary judgment, the Deputy Commissioner relied upon an affidavit of James Foster affirmed 2 July 2018, which, amongst other things, exhibited a certificate under s 255-45, confirming that the amount claimed was the sum due.
The matter was heard on 1 August 2018 by Judge Macnamara. He dealt, firstly, with the suggestion, which had been contained in the defence, that no proper notice had been given. He rejected that assertion on the basis of material filed on the Deputy Commissioner’s behalf proving that notices had been served. He then observed that while the pleaded defence had not been made out, other issues had been raised by Mr Sgroi in the course of the hearing. In particular, Mr Sgroi raised a concern as to whether payments which had been made by the company had been properly allocated.
This was not a matter as to which there was any evidence and was not a matter which had been raised in Mr Sgroi’s defence. The judge determined that he was not prepared to refuse the application on that basis because the matter had not been pleaded and because there was no evidence in relation to it. The judge observed that the issue had first emerged from the Bar table. He considered that the issue was in the realm of the hypothetical and fanciful and was insufficient to displace the effect of the proofs which the Deputy Commissioner had proffered.
Accordingly, Judge Macnamara gave the Deputy Commissioner judgment for the sum claimed, together with interest and made an order for costs.
The proposed grounds in the application for leave to appeal raise one entirely new matter, and one matter which is related to what had occurred on 1 August 2008.
The entirely new matter concerns s 55ZF of the Judiciary Act. The applicant contends that the Commonwealth failed to comply with a Legal Services Direction under that Act, in substance, because Mr Sgroi was not offered the opportunity of mediation prior to the Commonwealth taking legal proceedings or summary judgment proceedings against him. The difficulty with that submission is that the relevant legislation specifically provides that the issue of non-compliance with a Legal Services Direction may not be raised in any proceeding except by, or on behalf of, the Commonwealth. This provision is to be found in s 55ZG(3) of the Judiciary Act.
This proposed ground has no prospect of success.
The second proposed ground concerns Mr Sgroi’s request for a contested hearing. Mr Sgroi expanded upon that proposed ground before me today. In substance, he wishes to contend that the claim against him needs to be properly explored and that only the process of discovery and a trial can do that. He submits that he will advance a defence once the matter goes to trial, and he relies upon judicial observations as to the seriousness of determining matters in a summary way and, in effect, denying a person’s right to a trial.
I asked Mr Sgroi today in the course of the hearing, what issue there was that would be determined at a trial. I think it is fair to say that he was unable to identify what that issue might be.
In the circumstances, there is no real prospect of an appeal succeeding on the proposed second ground.
Undoubtedly, Judge Macnamara could have dismissed the application for summary judgment, even if no identified defence had been raised, if he was satisfied that there was some proper reason for doing so. But in the circumstances of this case, he clearly did not form that view and, in my opinion, there is no proper basis upon which he could have formed that view.
It seems to me that it is clear the judge’s decision to grant summary judgment was the correct one. The proposed appeal has no real prospect of success.
Accordingly, the application for leave to appeal will be dismissed.
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