| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : DEPUTY COMMISSIONER OF TAXATION FOR THE COMMONWEALTH OF AUSTRALIA -v- HELMS [2003] WADC 7 CORAM : DEPUTY REGISTRAR HEWITT HEARD : 31 DECEMBER 2002 DELIVERED : 30 JANUARY 2003 FILE NO/S : CIV 2514 of 2000 BETWEEN : DEPUTY COMMISSIONER OF TAXATION FOR THE COMMONWEALTH OF AUSTRALIA Plaintiff
AND
NATHAN PINKNEY HELMS
Defendant
Catchwords: Practice - Western Australia - Application for summary judgment - Turns on its own facts
Legislation: Income Tax Assessment Act 1936
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Result:
Plaintiff entitled to judgment but further affidavits to be filed setting out the calculation on certain interest and other charges Representation:
Counsel:
Plaintiff : Mr P H Pope
Defendant : In person
Solicitors:
Plaintiff : Australian Government Solicitor
Defendant : In person
Case(s) referred to in judgment(s):
F J Bloeman Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 360
Federal Commissioner of Taxation v Stokes (1997) ATC 4001
Case(s) also cited:
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
Deputy Commissioner of Taxation for the Commonwealth of Australia v Awad (2001) ATC 4049
Deputy Commissioner of Taxation for the Commonwealth of Australia v Jonrich Pty Ltd & Moore Bank Pty Ltd (1986) 17 ATR 880
Deputy Commissioner of Taxation for the Commonwealth of Australia v Saunders (2001) 46 ATR 334
Deputy Commissioner of Taxation v Levick (1999) 168 ALR 383
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd & Ors (1988) 81 ALR 397
Helljay Investments Pty Ltd v Deputy Commissioner of Taxation for the Commonwealth of Australia (1999) 166 ALR 302
J-Corp Pty Ltd v Australian Builders Labourer's Federated Union of Workers (WA Branch) [No 2] (1993) 46 IR 301
Jindra v Tech-Rentals Pty Ltd (No 2) [2000] VSC 132
Levick v Deputy Commissioner of Taxation (2000) 102 FCR 155
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McAndrew v Federal Commissioner of Taxation (1956) 98 CLR 263
McKewins Hairdressing and Beauty Supplies Pty Ltd (in liq) v Deputy Commissioner of Taxation (2000) 171 ALR 335
Money Tree Management Services Pty Ltd v Deputy Commissioner of Taxation (No 2) [2000] SASC 63
Money Tree Management Services Pty Ltd v Deputy Commissioner of Taxation (No 3) [2000] SASC 286
Money Tree Management Services Pty Ltd v Deputy Commissioner of Taxation [2000] SASC 345
NMRSB Ltd v Federal Commissioner of Taxation (1998) ATC 4188
Quancorp Pty Ltd & Anor v McDonald & Ors [1999] WASCA 101
Walton v Gardiner (1993) 177 CLR 378
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1 DEPUTY REGISTRAR HEWITT: The application before me is the plaintiff's chamber summons filed on 28 June 2002 seeking leave to apply for summary judgment and summary judgment in this action.
2 I first turn to consider the fact that the application for summary judgment was not brought within the time contemplated by the Rules. The defendant filed an appearance on 10 December 2001 to a writ which contained a pleaded statement of claim. The summary judgment application was brought on 28 June 2002. The defendant filed a defence on 7 February 2002 which was subsequently withdrawn on his own application in October. 3 The defence which was filed was in my view wholly unsatisfactory and would have made it clear to the plaintiff that this action was going to be defended on what might be described as a rather unusual basis, the defendant basing his defence amongst other things on an Instrument of Accession lodged with the United Nations in 2001, The Melbourne Agreement for the Prosecution and Punishment of the Major War Criminals of the Australian Axis, and The Charter of the Australian Military Tribunal Volumes 1, 2 and 3. 4 Although there was a delay beyond the time required by the rules for the commencement of a summary judgment application nonetheless the plaintiff was during part of that period entitled to enter a judgment in default against this defendant and refrained from doing so presumably in order to allow the defendant the opportunity to file a defence. Given the nature of the defence which was filed I think it proper of the plaintiff to have brought this action before the Court on the summary judgment application rather than pushing it through to trial so that the Court might determine the merits of the proposed defences in a summary way rather than incur the full expense of a trial. Therefore insofar as the application was brought late I consider leave should be granted excusing that lateness and I should determine the application on the merits of the claim itself. 5 The plaintiff's claim is for various sums of money said to be due by the defendant to the plaintiff by way of income tax, provisional tax and various amounts by way of additional tax for late payment and interest. 6 Subsequent to the commencement of these proceedings the defendant lodged an Amended Income Tax Return for the year ended 30 June 1999 as a consequence of which the plaintiff amended the assessment for that year. Those developments are reflected in a Proposed Minute of
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Amended Statement of Claim which I ordered to stand as the amended statement of claim in the preliminary stages of hearing this application. 7 The plaintiff's claim comprises two parts, those being the amounts of taxation assessed to be due and payable and various interest and additional tax payments said to be due by virtue of late payment. 8 The legislative framework upon which this action rests is simple. Section 177 of the Income Tax Assessment Act 1936 provides that the production of a Notice of Assessment properly authenticated shall be conclusive evidence of the due making of the assessment and that all of its particulars are correct. Section 170 of the Act provides that the Commissioner may amend an assessment (which he has done to substantially reduce the claim against the defendant in respect of the amendments which I have earlier mentioned). Section 208 provides that income tax when due and payable shall be a debt due to the Commonwealth and payable to the Commissioner and s 209 provides that unpaid tax may be sued for and recovered in any court of competent jurisdiction by the Commissioner or a Deputy Commissioner suing in his official name. 9 In the present case I have copies of the various assessments issued by the Commissioner against the defendant upon which the action is based and as a consequence applying the legislative framework I do, as I am required to, find that the assessments were duly issued and are correct in their particulars and each records a debt which was created due to and recoverable by the Crown. The issue then moves to the next stage in the enquiry which is, these processes having created debts due to the Crown, do those debts remain outstanding and are they recoverable by the plaintiff in this action. 10 On that issue there was some discussion between myself and counsel for the plaintiff as to whether or not the issue of an amended certificate created a fresh cause of action which would be required to be pursued in a separate writ. Having reviewed the cases cited to me by counsel and in particular Federal Commissioner of Taxation v Stokes (1997) ATC 4001 at 4006 and 4007 and F J Bloeman Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 360 and considered the relevant legislative section I am of the view that there is no doubt that an amendment of an assessment which operates to reduce the amount of tax payable by a tax payer would not amount to the creation of a fresh cause of action which would require the abandonment of the original and the institution of a new writ.
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11 The amendment in the case of the reduction appears to me to be a formal process by which the Commissioner waives a part of the claim which was, prior to the issue of the amendment, recoverable as a debt by him.
12 I now turn to consider the plaintiff's claim for additional tax for late payment, interest for late payment and general interest charges which are scattered throughout the statement of claim. 13 In so far as the additional tax is recorded on the assessments no further consideration is required but the plaintiff has not provided me with the nuts and bolts of the calculations by which interest charges were arrived at so that I may examine the arithmetic and satisfy myself that the calculations are correct and the amounts claimed are in fact due and payable. 14 On that score the plaintiff has tendered to me a certificate purporting to certify that the sum of $33,133.15 is as at 23 December 2002 a debt due and payable by the defendant to the Commonwealth of Australia. 15 Such a certificate is no more than prima facie evidence and I do not regard it as useful in this matter because it sheds no light on the composition of that debt and whether those monies are the same as those the subject of the action. Therefore insofar as the plaintiff claims these additional sums, whilst recognising its entitlement to make that claim I do not accept that the evidence has been put before which would allow me to satisfy myself that the calculations upon which the statement of claim is based are in fact accurate. Such information as I am given does not indicate to me the rates at which these charges have been levied and the period for which they have been levied. That would not be a fatal problem since were I to be satisfied that the plaintiff was entitled to a judgment I would allow the plaintiff to bring in further information to allow me to more thoroughly scrutinise this aspect of the case. 16 I now turn to the materials found by the defendant to determine if he has raised a defence on the merits or established some other satisfactory reason for this matter to go to trial. The defendant has sworn two affidavits in opposition, the first of which was sworn on 31 October 2002. That affidavit serves to challenge the total of the assessments which were issued by the Australian Taxation Office saying that they totalled $49,891.74. The assessments have been produced in evidence before me and the assertion of the defendant is plainly incorrect and the assessments do not amount to the total he has alleged. An officer of the plaintiff has
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deposed to the fact that he is unable to reconcile the figures quoted by the defendant with those relied upon in the action and neither can I. Since the assessments are before me I take the view that I should accept those assessments at face value. They speak for themselves and are evidence of the materials within them. 17 The next matter raised by the defendant is to suggest that certain sums were paid in reduction of the debts by a succession of cheques totalling $28,377.80. 18 An employee of the plaintiff has painstakingly examined those propositions and the plaintiff's response to those matters is contained in the affidavit of Mr Jim O'Donnell sworn 4 December 2002 which appears to me to provide a complete answer to the allegations of the defendant on this matter and refute the propositions advanced by the plaintiff. 19 It is in any event to be noted that the defendant concedes that he does owe $21,514.40 and he says as much in his affidavit of 31 October. 20 So much for the factual issues raised by the defendant and I now turn to a rather unusual aspect of the case. The defendant sought to be represented at the hearing by his attorney appointed by the grant of a Power of Attorney on 27 December 2002. The attorney was one Robert Alfred Halord and he made submissions on behalf of the defendant. Those submissions were really more in the nature of a political manifesto than submissions but nonetheless for the most part I heard them out. Effectively the argument appeared to be that Queen Elizabeth II was not lawfully a Queen of Australia, a consequence being Governor of Western Australia was not lawfully appointed and the writ in this action not lawfully issued and my own appointment by the Governor likewise invalid and that my hearing of the case constituted treason for which I would be in due course cited or impeached. A document purporting to be such a citation or impeachment was handed up to me but I declined to examine it. 21 The nature of the submissions in my view do not deserve more detailed comment than I have already given them. If this matter goes on an appeal I have ordered that the transcript be placed on the file and whomever hears the appeal will have the opportunity to examine the nature of the arguments and what transpired in court before me to more fully understand the basis of the submissions put. 22 In summary therefore I am satisfied that leave to bring this application should be granted and that the plaintiff should be entitled to a
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judgment in the action. Insofar as that judgment comprises the amount of taxation due under assessments issued it shall be in the amounts of those assessments. Insofar as the claim is for interest and other charges, whilst I accept the plaintiff is entitled to a judgment for those sums I decline to enter a judgment until there is produced to me and properly verified by affidavit a full explanation of the calculation of the amounts claimed in the statement of claim.
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