Deputy Commissioner of Taxation for the Commonwealth of Australia v Robinswood Pty Ltd
[2001] WASC 356
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: DEPUTY COMMISSIONER OF TAXATION FOR THE COMMONWEALTH OF AUSTRALIA -v- ROBINSWOOD PTY LTD [2001] WASC 356
CORAM: WHEELER J
HEARD: 11 DECEMBER 2001
DELIVERED : 20 DECEMBER 2001
FILE NO/S: CIV 2300 of 1997
BETWEEN: DEPUTY COMMISSIONER OF TAXATION FOR THE COMMONWEALTH OF AUSTRALIA
Plaintiff
AND
ROBINSWOOD PTY LTD (ACN 008 844 488)
Defendant
FILE NO/S :CIV 2318 of 1997
BETWEEN :DEPUTY COMMISSIONER OF TAXATION FOR THE COMMONWEALTH OF AUSTRALIA
Plaintiff
AND
MADDELIENE CARATTI
Defendant
FILE NO/S :CIV 2319 of 1997
BETWEEN :DEPUTY COMMISSIONER OF TAXATION FOR THE COMMONWEALTH OF AUSTRALIA
Plaintiff
AND
ZEL NOMINEES PTY LTD
Defendant
FILE NO/S :CIV 2320 of 1997
BETWEEN :DEPUTY COMMISSIONER OF TAXATION FOR THE COMMONWEALTH OF AUSTRALIA
Plaintiff
AND
VENETIAN NOMINEES PTY LTD
Defendant
FILE NO/S :CIV 2321 of 1997
BETWEEN :DEPUTY COMMISSIONER OF TAXATION FOR THE COMMONWEALTH OF AUSTRALIA
Plaintiff
AND
GRANGEFIELD HOLDINGS PTY LTD
Defendant
FILE NO/S :CIV 2322 of 1997
BETWEEN :DEPUTY COMMISSIONER OF TAXATION FOR THE COMMONWEALTH OF AUSTRALIA
Plaintiff
AND
EXCELCO MINING PTY LTD
Defendant
FILE NO/S :CIV 1126 of 1998
BETWEEN :DEPUTY COMMISSIONER OF TAXATION FOR THE COMMONWEALTH OF AUSTRALIA
Plaintiff
AND
MINE EXC PTY LTD
Defendant
Catchwords:
Practice and procedure - Application for leave to appeal
Practice and procedure - Pleadings - Consolidation of actions - Practical considerations
Practice and procedure - Pleadings - Strike out proceedings - Extension of time - Merits - Delay - Turns on own facts
Legislation:
Nil
Result:
Orders made
Category: B
Representation:
CIV 2300 of 1997
Counsel:
Plaintiff: Mr S Owen-Conway QC & Mr R E Lindsay
Defendant: Mr P G McGowan
Solicitors:
Plaintiff: Australian Government Solicitor
Defendant: Tottle Christensen
CIV 2318 of 1997
Counsel:
Plaintiff: Mr S Owen-Conway QC & Mr R E Lindsay
Defendant: Mr P McGowan
Solicitors:
Plaintiff: Australian Government Solicitor
Defendant: Tottle Christensen
CIV 2319 of 1997
Counsel:
Plaintiff: Mr S Owen-Conway QC & Mr R E Lindsay
Defendant: Mr P G McGowan
Solicitors:
Plaintiff: Australian Government Solicitor
Defendant: Tottle Christensen
CIV 2320 of 1997
Counsel:
Plaintiff: Mr S Owen-Conway QC & Mr R E Lindsay
Defendant: Mr P G McGowan
Solicitors:
Plaintiff: Australian Government Solicitor
Defendant: Tottle Christensen
CIV 2321 of 1997
Counsel:
Plaintiff: Mr S Owen-Conway QC & Mr R E Lindsay
Defendant: Mr P McGowan
Solicitors:
Plaintiff: Australian Government Solicitor
Defendant: Tottle Christensen
CIV 2322 of 1997
Counsel:
Plaintiff: Mr S Owen-Conway QC & Mr R E Lindsay
Defendant: Mr P G McGowan
Solicitors:
Plaintiff: Australian Government Solicitor
Defendant: Tottle Christensen
CIV 1126 of 1998
Counsel:
Plaintiff: Mr S Owen-Conway QC & Mr R E Lindsay
Defendant: Mr P G McGowan
Solicitors:
Plaintiff: Australian Government Solicitor
Defendant: Tottle Christensen
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
WHEELER J: On 11 December I made a number of interlocutory directions in this matter, and reserved my decision in relation to certain other matters. I now make orders, and give brief reasons, in relation to those outstanding matters.
Consolidation
Both parties agreed that it was convenient to consolidate these actions, but I took time to consider what directions should be given in relation to consolidation. In substance, all of the actions are identical save for that relating to the company Mine Exc CIV 1126 of 1998. However, the detail of the allegations, as to which employees are alleged to have been employed by each company, and therefore the detail of the amounts of taxation allegedly not deducted or remitted, differs from action to action. Because of the quantity of detail, it seems to me that it would be wasteful of time and cost to order a further consolidated statement of claim. Rather, I order that each of the actions listed on the heading to these reasons be consolidated with each other and be carried on as one action. I further order that action CIV 2300 of 1997 between Deputy Commissioner of Taxation for the Commonwealth of Australia as plaintiff and Robinswood Pty Ltd as defendant be the lead action and that all future process in these actions be entitled in that action, subject to the exception mentioned below.
So far as pleadings are concerned, because I do not order consolidation of pleadings, but rather order that the minutes of amended statement of claim already filed in relation to each action stand as the statements of claim relating to those matters in the consolidated action, the question arises as to the form of the defence or defences. Having regard to the existing defences filed it seems to me that it may not be necessary for defences to be filed in relation to each of the consolidated actions. However, it may be that the defendants do now wish to plead to the level of particularity which is to be found in the schedules of the statements of claim. I therefore leave open to the defendants the course which they wish to take. They may either file one defence entitled in the consolidated action and pleading to the allegations to be found in each of the statements of claim proper, or they may if they prefer file individual defences entitled in each of the actions which have been consolidated and dealing with the detail of each individual company or person's affairs. It seems to me unlikely that any future pleading or application needs to be dealt with in this way; rather, where it is necessary to distinguish between different companies and persons, that can be done by way of sub‑heading within the relevant documents. However, there will be liberty to apply, to each of the parties, where it is considered that this course may cause difficulty or confusion in any particular case.
The defendants' chamber summons to strike out proceedings as an abuse of process
Before me on 11 December the defendants produced a draft chamber summons seeking to have leave to make application out of time, to strike out proceedings as an abuse of process. They undertook to file the summons by close of business Monday 17 December, and I understand this has been done.
The draft summons was produced to me in the context of a submission that it was inappropriate to make further programming orders leading to a trial of this matter, on the basis that the defendants did wish to strike out the proceedings as an abuse of process, and on the basis that they wished to make application for leave to appeal interlocutory orders which I had made. It was submitted that, should those applications be successful, costs would be unnecessarily incurred in complying with further programming orders. Because of that context, I sought confirmation from counsel for the defendants that the defendants did indeed wish me to deal with the application for leave to bring the strike out proceeding, rather than simply taking into consideration the fact that the defendant proposed to make such an application. I was advised that it was sought to have me deal with the application for leave and to make appropriate programming orders in relation to the strike out application.
Order 20 r19(3) requires that an application to strike out the whole or part of a pleading must be made within 21 days of its service. A brief history of pleadings in this matter is as follows:-
5 December 1997
Writ of summons filed with statement of claim annexed
24 February 1998
Defence
22 April 1998
Defendant's summons for leave to amend the defence
30 September 1998
Amended defence
13 December 2000
Minute of proposed amended statement of claim
27 February 2001
Defendant's summons to strike out the claim or paragraphs of it
14 December 2001
Defendant's summons to strike out proceedings as an abuse of process
The content of the statement of claim has not been significantly altered by any of the amendments made. The point which it is sought to argue is that s 221NB(1) of Division 2 of Pt VI of the Income Tax Assessment Act precludes the bringing of each of these actions. It can be seen therefore that the application is in each case grossly out of time.
So far as the application for extension of time is concerned, it appears to me that the defendants have simply not presented any material which would point to an exercise of a discretion to extend time in their favour. It is appropriate in such a case normally to look at the period of the delay, the explanation for the delay, and the merits of the proposed application. As I have noted, the period of delay is gross. So far as explanation is concerned, there is none. There is no material, on affidavit or otherwise, to explain why it is that the defendants did not choose to bring this application at a much earlier stage. So far as merits are concerned, I am prepared to assume that the application is arguable. I do so despite the fact that I was not taken in argument to the relevant definition provisions of the statute which, it was asserted, demonstrated that s 221NB(1) had application in this case. However, in a context in which no argument was addressed to the merit of the proposed application, so as to demonstrate that it had strong merit, I give little weight to this factor. I would therefore dismiss the defendants' application for leave to extend time within which to bring an application to strike out the statement of claim as an abuse of process.
Defendants' application for leave to appeal
This application arises in respect of an application made by the plaintiffs for the admission of evidence pursuant to O 29, and an application by the defendants to strike out various statements of claim. I published reasons in relation to those applications on 3 August this year, and a question arises as to whether the application for leave to appeal is out of time. Again, a draft of the application for leave to appeal was produced to me on 11 December with an undertaking that it would be filed.
I have reviewed the transcript of the proceedings on 3 August, and I note that on that occasion I published reasons and indicated in broad terms the form of orders which I would be proposed to make. I then made this observation:-
"It therefore seems to me that the most appropriate thing to do at the moment is simply to publish my reasons and to direct the plaintiff to prepare minutes of orders in conformity with them which can then either … be agreed or, alternatively, be the subject of brief argument as to those parts which are disputed at a later date. So for the moment I simply publish my reasons."
Reasons for decision are neither a judgment nor an order of the court, and it is in my view that in the circumstances of this case it was clear that no orders would be made until such time as the plaintiff produced a minute, which I would then deal with either by consent or after further argument. The minute only came before me on 11 December and I made the orders against which the defendants now seek to appeal on that date, it being agreed between the parties that they were orders which logically flowed from the reasons which I had delivered. It is my view therefore that time commenced to run only on 11 December.
It is my view that it is not appropriate for me to determine whether leave should be granted to appeal. Rather, I would leave the defendants to make that application before the Full Court. Because of the time which has already elapsed between the publication of my reasons and the date of making orders, and because those interlocutory orders will affect the way in which the action is run, it is my view that it is desirable for the appeal to be dealt with as promptly as possible. That is most likely to occur if the application for leave and the appeal are heard together.
I raised with the parties whether it would be desirable for the appeal to be dealt with by a Full Court consisting of three Judges, rather than by two Judges under the O 63A procedure. Neither strongly pressed this course upon me. There is a potential issue of principle as to the proper construction of O 29 arising in the appeal, but it is by no means certain that the point will arise. Apart from that potential issue, it appears to me that there is nothing in the proposed appeal of sufficient complexity or significance to warrant it being dealt with other than under O 63A.
I would therefore direct that the application for leave to appeal be heard together with the appeal pursuant to O 63A. It appears to me that it is not necessary to make any other directions necessary or desirable for the expeditious hearing of the appeal. However, I do make one observation which I hope will assist in saving costs. It appears to me that it is unnecessary for the determination of this application for leave to appeal, or for the determination of the appeal, that each of the schedules to each of the relevant statements of claim should be before the Full Court. It may be that only one representative statement of claim, together with its schedules, would suffice to enable Full Court to determine that the issues in respect of which the defendants seek to appeal. At most, it appears to me that it would be necessary for the Full Court to have each of the statements of claim together with the schedules to one only of them. Such a course would result in some saving of time and cost in relation to application books. It is for the parties to determine, pursuant to O 63A r 3(3)(4) what papers should be contained in an application book; I would simply encourage the avoidance of unnecessary duplication.
The proposed programming orders
The plaintiff now seeks orders that the defendants file and serve further amended defences, that the plaintiff serve its replies and that witness statements then be exchanged. The defendants, on the other hand, submit that the question of whether the existing statements of claim are embarrassing is a central issue for determination in their proposed appeal. It is submitted that it is not an efficient means of dealing with the action to require them to file defences in circumstances where the statement of claim may, depending upon the outcome of the proposed appeal, be the subject of significant amendment.
There are a number of matters to take into account in relation to the proposed programming orders. It seems to me that there is some force in the defendants' submission that they should not be required to file defences until the determination of the application for leave to appeal and, if leave is granted, the appeal, in relation to the statement of claim. Although it is undesirable that there should be further delay in relation to this matter, there has already been significant delay. For example, almost a year elapsed between the date on which the parties first appeared before me and the plaintiff foreshadowed its O 29 application, and the date on which the O 29 application was argued. That is no criticism of the plaintiff, since the actions are plainly of very considerable factual complexity. However, against that background, it seems to me unlikely that the further delay occasioned by the proposed appeal would be very significant. Order 63A is intended to constitute a special avenue whereby interlocutory orders may be dealt with expeditiously by a Full Court composed of two Judges. The expectation is that those appeals will be brought on in a relatively short space of time and generally that appears to be the case in relation to such appeals. It is therefore my view that it would be inappropriate to make the programming orders sought by the plaintiff at the present time.
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