Deputy Commissioner of Taxation v Athanasiou

[2000] NTSC 102

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PARTIES	DEPUTY COMMISSIONER OF TAXATION	V
ATHANASIOS ATHANASIOU
TITLE OF COURT	SUPREME COURTOFTHE NORTHERN TERRITORY OFAUSTRALIA
JURISDICTION	Interlocutory Application
FILE NUMBER	233196(9625847)
DELIVERED	18 May 2000
HEARING DATES	9 May 2000
REASONS OF	The Master
CATCHWORDS

of first application - relevant considerationsCourt Rules - summary judgment - further application following failure PRACTICE - Northern Territory - amendment - 0,2202(4) Supreme

CASES FOLLOWED

Carr v Finance Corporation of Australia 147 CLR 246

D. A. Christie Pty. Ltd. v Baker(1996) 2 VLR 582

Hall v The Nominal Defendant 117 CLR 423

Territory Loans Management v Turnerl, O FLR 341

REPRESENTATION

Counsel:

Plaintiff	Mr Silvester
Defendant	Mr Davis

80/10^tors.

Plaintiff	Australian Government Solicitor
Defendant	Davis Norman

Number of pages 5

Judgment category classification

Judgment ID number mas008

D. IT}^ SUPRE^^IE COURT

OFT}-IENORTHERN TERRITORY

OFAUSTRALIA	^.
ATDARWIN
233196(9625847)	Between:
DEPUTYCOnnvllSSIONEROFTAXATION

Plaintiff

and

AT}-^NASIOS AT^NASIOU

Defendant

MASTERCOULEl-IAN:REASONSFORDECISION

roelivered 18 May 2000).

II I The plaintiffhas applied for strumiary judgement. This is the second

such application, the first having been dislTitssed on I October 1998. Since then the plaintiff has amended its statement of claim, and the defendant has

filed an amended defence.

I 2 l The plaintiff's first application for sinnmary judgement failed because there was insufficient evidence of service of the notices of assessment relied

plaintiff seeks to remedy this deficiency by the provision of a fresh certificate	upon (see reasons for decision dated I October 1998). filthis application, the
under regulation 67 of the income Tax Regulations.
t 3 I The application is brought pursuantt0 0.22 of the Supreme Court Rules. O. 22.02(4) provides " Except by order of the court, the plaintiff shall make only one application for judgement under this Order. ". This appears to allow a
wide discretion, although the wording suggests that the norm is only one

.

application, and therefore some good reason must be shown before a second

application may be allowed.

^,

I 4 I It was subinttted on behalf of the defendantthatthe circumstances of the first application raised an issue estoppel, although this was not developed in argument. Consideration of the reasons in H"11v The NominalDe end", zt

117 CLR 423, Corr v Finance Cor orcti0" 0 11"strong 147 CLR 246 and D. A Christie PLtd. v Biter (1994) 2 I"LR 582 suggests that the decision

made on I October 1998 was not a final detenniriation of the matter so as to

create an estoppelprecludirig the making of a second application.

t 5 I The defendant also submitted that this application was an abuse of process

because it was a duplication of the application previously decided and did not

raise any new issues or introduce new evidence not available at the time of the
previous application.

I 6 I Some support for this submission may be found in Christie, in which it was decided by a majority that a second application for an extension of time under section 23A of the Limitation of Actions Act 1958 failed where the first application had been decided on the merits, and the applicant sought, without explanation, to introduce additional evidence available at the time of the first

bearing.reluctance to allow the re-litigation of matters decided on the merits. It was,The cases referred to in Christie suggest an understandable	however, suggested that there may be a difference between applications such as
the one under consideration in that case and interlocutory applications of a
procedural namre within the control and discretion of the court.
I7 l There are a number of matters for consideration. The first application did not failbecause of a technicality, but it could not be said that antiie issues were decided on their merits because the plaintiff failed to establish his cause of
action, and there was no need forthe defendant to show cause.

,

t 8 I I\10 evidence has been offered as to the failure to prove service of the

relevant documents, but, on the hearing of the first application, plausible

arguments were advanced as to the sufficiency of the evidence. It transpired,

on closer analysis, that the evidence was not sufficient, but it could not be said

that the application was made withoutregard to the evidence required.

t 9 I A defendant may reasonably expect not to be burdened by successive

applications, but there are other considerations. The Rules the require

effective, complete, prompt and econorritcal detemiination of proceedings (see

O. 1.10), and it is in the interests of the parties, and other litigants, that proceedings which are capable of being resolved under 0.22 are not
unnecessarily taken to trial. This is the predominate consideration in this case and it is therefore appropriate that the plaintiff be allowed to bring a further

application.

[ 10 ] The parties argued the merits of the application for summary judgement.

I11 I The plaintiffrelies on a fresh certificate issued punsuantto Regulation 67.

At the time of this application a certificate was given by Richard Charles

Matthews, but it was subsequently discovered that he was not qualified to give the certificate, and a further certificate, in the same tenns, was given b Jeimie

not rely on this certificate, but this argument was not developed, and there	Granger. It was subntitted on behalf of the defendantthat the plaintiff could
appearsto be no reason why the certificate may not be relied upon.
t 12 I It was conceded that there was no issue as to the authority of Ms.
Grangerto give the certificate, and there was no argument as to the accurac of the certificate. The certificate cures the defect tilthe previous a Tication, and completes the matters the plaintiffneeds to rely upon to establish his cause of
action.

.

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t 13 I The plaintiff having established a prima facie case, the defendant is required to show cause. It is convenientto consider some of the allegations

contained in the amended defence. ^.

t 14 I It is alleged that valid and enforceable notices were not served, but the plaintiffmay rely on the certificate, in the absence of contrary evidence. There

is no such evidence.

t 15 I fits alleged that the notices are "capable of being the subject of challenge parsuant to section 75 of Australian Constitution Act and Section 39B of the Judiciary Act". This allegation is incomprehensible.

I16 I fits alleged that the plaintiffis in breach of an undertaking, butthe effect of such breach has not been pleaded. It may be intended that the estoppel pleaded triparagraph 21(d) applies, but this is not clear. in any event, there is no evidence as to this undertaking or its effect. The defendant soughtto rely on a letter to the defendant dated 9 June 1998, butthe truth of the contents of

this letter has not been established.

I17 I It was submitted on behalfofthe defendantthatthe plaintiffhas failed to rebut the allegations contained in paragr. aph 21 of the amended defence, but

this Thistakes the onus. Once the plaintiffhas established that he has a good	cause of action the onus shifts to the defendantto show cause why judgement
should not be given against him (see TerntoLo""s MCIz@ emei, t v T, ,mer 110FLR 341).
t 18 I While the defendant offered no evidence msupport offits defence, apart from the letter referred to above, it was argued, by reference to the affidavit of
andrew Charles Whittles sworn on 15 May 1998, that the plaintiffs
calculations could not be relied upon. filthis affidavit, Ivfr. . Whittles adriftts that a previous certificate contained errors that were the result of typographical

.

.

.,

errors and the extraction of the wrong figures from the plaintiffs records.

However, no attempt has been made to demonstrate that the certificate now sought to be relied upon is maccurate, and there is no reason to doubt its^.

accuracy.

t 19 I There is no real question to be tried and there is no other reason why

there should be a trial. The plaintiff is entitled to judgement in the sum of

$155,512.12, being the sum claimed in the certificate dated 20 April 2000. As

there appears to be a claim for interest, I will hear the parties as to what

additional sum, ifany, should be allowed.