Deputy Commissioner of Taxation v Banks

[2009] QDC 359

[2009] QDC 359

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 2497 of 2007

DEPUTY COMMISSIONER OF TAXATION	Plaintiff
and
DAVID BANKS	Defendant

BRISBANE

..DATE 13/10/2009

ORDER

CATCHWORDS

Uniform Civil Procedure rules r 225, r 371, r 687(2)(c)

Costs fixed when order made for completion of disclosure by production of copies of documents

HIS HONOUR:  The Court makes an order in terms of the initialled draft.  It requires the defendant to complete disclosure by delivering copies of documents whose existence he has already reported.

It also requires the defendant, should he seriously make a claim of privilege in respect to any of the documents, to support such a claim on affidavit. 

Finally, it requires him to pay the plaintiff's costs of and incidental to the application, fixed in the sum of $1,056.94 in reliance on rule 687(2)(c). 

Dealing with that last aspect first, Mr Maraj's affidavit contains an itemised schedule showing how the total is made up.  Without descending into the detail of that, I am prepared to observe that, approaching the matter broadly, the claim for costs appears modest.  The plaintiff had to go through the usual preliminaries of a rule 444 letter and the like.

As far as the principal relief is concerned, I am not able to understand the assertion that rule 371 has a role to play  given that such default as there has been is the defendant's, and not that of the applicant/plaintiff.  The submissions handed up by Mr Maraj refer to the disclosure rules but not specifically to rule 225, which it appears to me is the one authorising the granting of relief.  What Mr Maraj seeks falls far short of the more draconian species of relief described in rule 225.
Mr Banks, the respondent, has not appeared today when called, although Mr Maraj's affidavit establishes that he has been served by posting to 70 Edith Street, Wynnum, which is the address he indicates in the pleadings prepared by himself as appropriate.

The proceeding is an unusual one in which he, as a director of a company, is pursued in respect of failure to withhold against company employees and then remit to the plaintiff certain monies.  Mr Maraj informs the Court that the plaintiff has succeeded in obtaining summary judgment for part of the claim.  Other parts have been sent to trial and it is in that connection that the plaintiff wishes to have access to documents which will shed light on Mr Banks' assertions that there is a defence available to him.

Order as per initialled draft.

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