Deputy Commissioner of Taxation for the Commonwealth of Australia v Tomarchio
[2006] WADC 18
•1 MARCH 2006
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: DEPUTY COMMISSIONER OF TAXATION FOR THE COMMONWEALTH OF AUSTRALIA -v- TOMARCHIO [2006] WADC 18
CORAM: WAGER DCJ
HEARD: 3 FEBRUARY 2006
DELIVERED : 1 MARCH 2006
FILE NO/S: CIV 1117 of 2005
BETWEEN: DEPUTY COMMISSIONER OF TAXATION FOR THE COMMONWEALTH OF AUSTRALIA
Plaintiff
AND
SALVATORE TOMARCHIO
Defendant
Catchwords:
Summary judgment - Appeal from decision of Deputy Registrar - Whether Deputy Registrar had jurisdiction to order summary judgment - No real question to be tried - turns on own facts
Legislation:
Civil Enforcement Judgments Act
District Court of Western Australia Act 1969
District Court Rules 2005
Income Tax Assessment Act 1936
Judiciary Act 1903
Rules of the Supreme Court
Taxation Administration Act 1953
Result:
Appeal is dismissed
Representation:
Counsel:
Plaintiff: Mr B P Boyle
Defendant: In person
Solicitors:
Plaintiff: Australian Government Solicitor
Defendant: Not applicable
Case(s) referred to in judgment(s):
Fancourt & Anor v Mercantile Credit Ltd (1983) 154 CLR 87
Money Tree Management Services Pty Ltd v Deputy Commissioner of Taxation (No 1) [2000] SASC 54
Case(s) also cited:
Arundel Chiropractic Centre Pty Ltd v Deputy Commissioner of Taxation [2001] HCA 26
Batagol v Federal Commissioner of Taxation (1963) 109 CLR 243
Carltona Ltd v Commissioner of Works [1943] 2 All ER 560
D Thomas & Company Pty Ltd v Deputy Commissioner of Taxation [1999] QSC 367
Deputy Commissioner of Taxation (Cth) v Mackey (1982) 13 ATR 547
Deputy Commissioner of Taxation (WA) v Australian Machinery & Investment Co Pty Ltd (1945) 47 WALR 9
Deputy Commissioner of Taxation v Collie [1998] 2 VR 106
Deputy Commissioner of Taxation v Levick (1999) 168 ALR 383
Deputy Commissioner of Taxation v Loftus [2002] VSC 68; (2002) 49 ATR 135
Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168
Dooney v Henry [2000] 174 ALR 41
F J Bloemen Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 360
Federal Commissioner of Taxation v Prestige Motors Pty Ltd (1994) 181 CLR 1
Helljay Investments Pty Ltd v Deputy Commissioner of Taxation (1999) 166 ALR 302
Joosse v Australian Securities & Investment Commission (1998) 159 ALR 260
McAndrew v Federal Commissioner of Taxation (1956) 98 CLR 263
O'Reilly v Commissioners of the State Bank of Victoria (1983) 153 CLR 1
Professional Nominees Pty Ltd v Walsh & Anor (1998), unreported; 29 September 1998; Qld CA 5591
Re Pollack 22 ATR 670
Snow v Deputy Commissioner of Taxation (1987) 14 FCR 119
WAGER DCJ: This is an appeal against the judgment of Deputy Registrar Hewitt delivered on 21 November 2005 ordering summary judgment for the plaintiff in the sum of $256,946.86 together with some further sums against the defendant.
The plaintiff's claim is in relation to tax assessments raising income tax charges for the 1999 and 2000 financial years in respect of income received from gold prospecting activities. The defendant opposed the plaintiff's application for summary judgment on the facts deposed by the defendant in his affidavit dated 13 November 2005.
Although the grounds for appeal are somewhat confusing, the defendant submits that the learned Registrar did not have jurisdiction to order summary judgment in this case and, in the event that he did have jurisdiction he should not have ordered summary judgment because there is a real question to be tried.
The Commonwealth Attorney General was given notice of this appeal pursuant to s 78 Judiciary Act 1903. By letter dated 2 February 2006 notice was received by the plaintiff's solicitors that the Commonwealth Attorney General would not be intervening nor would he be applying to have the matter removed to the High Court.
Did the Deputy Registrar have jurisdiction?
Order 14 r 1 of the Rules of the Supreme Court provides:
"Where a statement of claim has been served on a defendant and the defendant has entered an appearance the plaintiff may, on the ground that the defendant has no defence to a claim included in the writ, or has no defence to such claim or part except as to the amount of any damages claimed within 21 days after appearance or at any later time by leave of the court, apply to the court for judgment against the defendant."
Section 53(1) District Court of Western Australia Act 1969 states:
"Powers and authorities of District Court Judges and officers of the Court
(1)Without affecting the generality of the foregoing provisions of this Act, in all actions, matters and causes within the jurisdiction of the Court, a District Court judge has for the purposes of this Act, in addition to the powers and authorities conferred upon him by this Act, all the powers and authorities of a judge of the Supreme Court; and in all such actions, matters or causes, a registrar who is or has been a legal practitioner has, and is deemed to have always had, for the purposes of this Act, in addition to the powers and authorities conferred upon him by this Act, all the powers and authorities of the master and the registrar of the Supreme Court; and every registrar or other officer of the Court shall in all such actions, matters or causes, discharge any duties that a corresponding officer of the Supreme Court has authority to discharge, either under the order of a judge of the Supreme Court or under the practice of that Court, and all officers of the Court in discharging those duties, shall conform to the rules of court."
Section 8(1) District Court Rules 2005 sets out that a legally qualified Registrar may deal with any proceedings that a Judge may deal with in chambers. The exceptions specified do not include an application for summary judgment pursuant to O 14 r 1 of the Supreme Court Rules.
The plaintiff submits that the learned Registrar did not have power to order summary judgment pursuant to the Civil Enforcement Judgments Act 2005. The Civil Enforcement Judgments Act relates to the enforcement of judgments that have already been given and does not apply to jurisdiction to order summary judgment. Accordingly, s 63 Civil Enforcement Judgments Act is not relevant.
It is further submitted that no judgment should be made because any actions on behalf of the Deputy Commissioner for Taxation are invalid because an appointment made by the Governor General is not a valid exercise of powers vested by the constitution in the Governor General. A similar argument was substantially argued in Money Tree Management Services Pty Ltd v Deputy Commissioner of Taxation (No 1) [2000] SASC 54. Chief Justice Doyle stated at par 22:
"My view is that the State Parliament has power to create means for recovering debts and any legal entity within Australia, whether it owes its existence to State or Commonwealth law, may resort to those means under State law for the recovery of debts".
I consider that the same position exists in the State of Western Australia.
Additionally, the defendant refers to O 18 r 16, O 20 r 12, O 20 r 13, O 2 r 2, O 13 r 9 and O 56 r 1 Rules of the Supreme Court. I do not consider that any of these rules apply to the decision made by the learned Deputy Registrar.
I find that the learned Deputy Registrar had the power to hear and determine the application for summary judgment pursuant to O 14 r 1 Rules of the Supreme Court.
Is there a question of law to be tried?
The power to order summary judgment should be exercised with great care and should never be exercised unless it is clear there is no real question to be tried: Fancourt & Anor v Mercantile Credit Ltd (1983) 154 CLR 87 at 99. The defendant submits that there is a real issue to be tried in relation to the debt alleged by the plaintiff.
The defendant has been assessed under the Income Tax Assessment Act 1936 to pay income tax as set out in the plaintiff's statement of claim. Upon service of the notices of assessment issued in respect of the income years ended 30 June 1999 and 30 June 2000, the defendant became liable to the tax assessed and shown as due and payable thereon. Section 255‑5 Taxation Administration Act 1953 ("the TAA") allows the plaintiff to recover the defendant's unpaid tax liability in a court of competent jurisdiction.
Pursuant to s 255‑45 Sch 1 of the TAA the certificate exhibited as "A" to the affidavit of Diana Zanelli sworn 18 November 2005 is prima facie evidence that the assessments were duly served on the defendant and that the sum of $273,203.54 is due and payable by the defendant to the plaintiff.
Section 177 Income Tax Assessment Act 1936 provides that the production of copies of the assessments to the court is conclusive evidence that the assessments were duly made and that the particulars of the assessments including the tax payable are correct. Copies of the relevant assessments are annexed to the affidavit of Steven Anthony Cantrill sworn 10 October 2005. The assessments are protected from challenge other than in proceedings under Pt IVC of the TAA.
The plaintiff submits that the fact that the defendant has recently purported to object to the assessments does not affect his obligation to pay the assessed income tax or the plaintiff's right to recovery the statutory debt. The plaintiff refers to the long established policy embodied in the legislation in ss 14ZZM and 14ZZR of the TAA that the recovery of tax should be given priority over the right of a taxpayer to challenge an assessment by way of a review of appeal.
It is acknowledged that the defendant queries the accuracy of the relevant assessments and the morality of ordering that tax be paid in relation to gold that was located as part of the defendant's fossicking in the Laverton area. These are not issues the subject of the plaintiff's claim, and are not issues that raise a triable issue in respect of the summary judgment order in relation to the defendant's income tax debt.
The District Court of Western Australia has jurisdiction to recover income tax debts pursuant to ss 208 and 209 Income Tax Assessment Act 1936, s 50 District Court of Western Australia Act 1969 and s 39(2) Judiciary Act 1903. Further, the amount of the claim being $256,946.86 falls within the jurisdiction of the District Court of Western Australia that has a current jurisdictional limit of $500,000.
The Deputy Commissioner of Taxation is entitled to commence proceedings and bring an application for summary judgment to recover the tax debt owed by virtue of ss 220AAZA(4) and 221R Income Tax Assessment Act 1936 and s 250‑5 of Sch 2 of the TAA. Section 8 TAA gives the Commissioner of Taxation the power to delegate his powers and functions under a taxation law or any other law of the Commonwealth or Territory. By virtue of s 8A TAA the Commissioner may delegate his powers and functions (be they powers and functions under the TAA or other "taxation laws") to Deputy Commissioners of Taxations and to officers and employees employed in the Australian Taxation Office, and accordingly the plaintiff has standing to commence proceedings against the defendant and to apply for summary judgment in this matter.
I find that the debt the subject of the relevant assessments is due and owing and that there is no triable issue in respect of the debt.
The appeal is dismissed.
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