Deputy Commission of Taxation v Robert Graham Douglas Hill

[1980] FCA 161

$1	*
I N THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY S.A. No. G 1 3 of 1980
GENERAL D I V I S I O N

ON APPEAL FROM THF COURT OF I?iSOiVEi’X!Y OF Tb3 I

STATE OF SOUTH AUSTRALIA %ZXISiNG FZDXWL

J U R I S O I C T I G N IN EAiJiiHJFYCY

BETWEEN:

ROBERT G R M DOUGLAS H I L L A p p e l l a n t

and

THE DEPUTY COMMISSI0hE.R OF TAXATION R e s p o n d m t

ORDER

JUDGES : N o r t h r o p , D e a n e , M c G r e g o r , JJ.

DATE :	14 October 1980
WHERE M4DE:	A d e l a i d e
ORDER :	The appeal be 6ismissed w i t h c o s t s .

1

I N THE F E D E W COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S.A. No. G 1 3 o f 1980

GENERAL D I V I S I O N

ON APPEAL FROM THE COURT OF INSOLVENCY OF THF:

STATE OF SOUTH AUSTRALIA EXERCISING FEDERAL

J U R I S D I C T I O N I N BANKRUPTCY

BETWEEN:

ROBERT GRAHAM DOUGLAS H I L L A p p e l l a n t

and

TKE DEPUTY COMMISSIONER OF TAXATION R e s p o n d e n t

NORTHROP , DEANE ,

RcGFUGOR, JJ. EX TEMPORE JUDGMENT 14 OCTOBER 1980

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NORTHROP J: This 1 s an appeal from the Court of Insolvency

of the State of South Australia, his Honour Judge

Rogerson, exerclsing federal Jurlsdlctlon in

bankruptcy. Hls Honour refused to set aslde a

bankruptcy notice which had been served upon the

appellant requiring the appellant to pay, secure or compound the sum of $10,450.39 payable under

a judgment of the Local Court of Adelalde dellvered

in May 1978 In an action commenced In l976 In favour

of the respondent, Deputy Commlssloner of Taxatlon.

The appellant had, In accordance wlth sectlon 40(1) ( g )

of the Bankruptcy Act 1966 flled an affldavlt clalmlng

that he had a counter-claim, set-off or cross-demand

against the respondent In the amount of $15,000.

His Honour found that he was not satlsfled that there

was any basis for the alleged counter-clam, set-off

or cross-demand.

The appellant appeals agalnst the substance of

his Honour's findings. He also appeals on the ground

that hls Xonour was in error In refuslng an appllcation

for an adjournment of the proceedlngs whlch had been

. made to hlm. By ground 2 of the further grounds of

appea1,the appellant raised as an issue the questlon

of whether the Registrar-in-Bankruptcy was purporting

to exerclse Judlcial powers which he In law was not

empowered to exerclse. At the beginning of the hearlng

c?f the appeal the appellant wlthdrew that ground of

appeal and accordingly no notice was requlred to be

given under section 78B Judlclary Act 1903. Durlng

the course of the hearing of the appeal, the appellant

withdrew ground 7 of the grounds of appeal.

There was some discusslon before us as to

whether the appellant had In fact been refused an

adjournment. On the basis that he was. the appellant

has failed to show that there are grounds for lnterferlng

with the refusal of his Honour, in the exercise of hls

discretion, to grant an adjournment of the proceedlngs

on 18 June 1980. In thls regard, It should be

mentloned that the only prejudice which the appellant

has suggested he suffered as a result of the refuszl of an adjournment was the absence of access to certaln

categorles of documents. On the hearlng of the

appeal, the appellant was unable to Fpeclfy any

particular additional document whlch he deslred to

adduce in evidence elther before thls court or

before the court of first Instance on any re-hearing.

J

As regards the substance of the appeal, It 1s

difficult to comprehend even an argument that the

appellant has a cross-clalm In the amount of $15,000

Doing the best that I can, it would seem that the

appellant's argument is that a company, Mlneral

Fertilizer Proprietary Llmlted (formerly Primary

against the respondent, Qeputy Commlssloncr of Taxatlon. as being indebted to the appellant, that the appellant,

who claims this book debt In his favour was "spurious",

assigned the book debt to the Deputy Conmissloner of of Mineral Fertillzer Proprletary Llmlted, purported

to issue in his own favour a group certlflcate showlng

total deductions as havlng been made from salary or

wages in the amount of $15,000. On thls basls it was

claimed that the Deputy Conunlssloner was Indebted to

the appellant In the amount of $15,000.

Taking into account, as best I can, all of the

arguments advanced by the appellant, I am unpersuaded

that his Honour was in error in flndlng that he was

not satisfled, on the evidence before hlm, that there

was any basls for the appellant's clam that the

respondent was lndebted to hlm In the amount of

$15.000. Insofar as the appellant relles on the

provisions of sectlon 221H of the Income Tax Assessment

A c t 1 9 3 6 , I am of the view that the sectlon refers to

a group certificate Issued In respect of deductlons

which have actually been made from an employee's

salary or wages. Sub-section (7) of the sectlon

L	plainly lndlcates that the sectlon is not intended
to operate so as to entitle an employee to clalm
credlt or payment of the amount shown In a document in the form of a group certlflcate where that amount
has neither been recelved by the Cornmissloner nor
deducted from h l s salary or wages.

It should be mentloned that a number of partlcular

criticisms of his Honour's Judgnent were made by the

appellant. Some of those partlcular critlclsms would

appear to have some substance. In particular, there

would appear to be no adequate basls In the evidence

set out in the appeal book for hls Honour's statement

that Mlneral Fertlllzers Proprletary Llmlted was

itself in such serlous flnanclal dlff~cultles that

recourse to It might bc useless. Any such matters

are, however, of peripheral lmportance and do not

affect the substance of the appeal.

It should be mentloned also that when the appeal

was called on for hearlng the appellant requested

an adJournment to enable hlm to obtaln legal

representatlon. Subsequently, after the court

indicated It was prepared to accede to thst appllcatlon,

he withdrew It.

I would dismlss the appeal with ccsts.

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DEANE J: I agree.

McGREGOR J: I concur wlth the order proposed by the learned

presiding judge and for the reasons he gives.

NORTHROP J: The order of the court 1s that the appeal 1 s

dismissed with costs.