Deputy Commissioner of Taxation v Dobson

[2013] QDC 25

[2013] QDC 25

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 4919 of 2011

DEPUTY COMMISSIONER OF TAXATION	Plaintiff
and
FRANCIS PHILIP DOBSON	Defendant

BRISBANE

..DATE 29/01/2013

ORDER

CATCHWORDS

Uniform Civil Procedure Rules - r292

Adjournment  of summary judgment application on first mention date for 6 weeks as sought by the respondent for purpose of obtaining legal and accounting advice where it was unclear whether all credits he might be entitled & had been allowed against the claim.

HIS HONOUR:  The Court adjourns the plaintiff's application filed 13th of December 2012 to 4th of March 2013 and orders that any material the defendant wishes to rely on on that date be filed and served no later than 25th of February 2013.

The applicant's costs for the adjournment are to be the applicant's costs in the cause.

...

HIS HONOUR:  Mr Bell, representing the plaintiff in this application for summary judgment, has fairly conceded that the defendant, Mr Dobson, has one point that might appeal to the Court, namely that the summary judgment application hadn't been adjourned previously.

There's a willingness usually to indulge a defendant facing a claim which he appears to have scant prospects of defeating on the merits a first adjournment.  Mr Dobson, who has only recently become self-representing because of difficulties in funding an appearance by solicitors, has sought six weeks.  He is hopeful in that time something in terms of figures affecting his taxation liability casting doubt on the claim to a greater or a lesser extent will turn up.

He has had legal advice and also, he says, accounting advice.  His ability to continue to do that probably depends on funds becoming available.  He says he is disadvantaged in doing that because he has lost the advantage of his licence to operate as a builder, an unforeseen consequence of his placing of a company of which he was a director in liquidation.

The time of year is not propitious from the point of view of a defendant needing professional assistance.  Today marks more or less the beginning of the Court year and the end of the holiday period.  The summary judgment application was "served" electronically on the date of issue, 13th of December last year.  The time of year adds to the sympathy which a defendant seeking a first adjournment ordinarily commands.

A huge part of the claim is for interest.  It goes back to 2001.  Mr Dobson appears to suggest that his difficulties flow from his being caught by having nominated an accruals basis for calculating his taxation liabilities, in particular the Goods and Services Tax items.  He brandished a sheaf of invoices, including GST components, issued by him or entities of his over the years saying that these were never going to be paid, yet the plaintiff, as the law allows, seeks to collect the amounts payable to the commonwealth and charge interest thereon where as here the taxpayer to take in a timely way the steps that taxation provisions make available. It's not impressive that Mr Dobson has left things so late.  Mr Bell is under some disadvantage today finding himself presenting the applicant's case given the inability of other officers to do so on account of the flooding occurring and threatened in Brisbane.

I can't say that there is no possibility of grounds being presented that suggest the claim is higher than in justice it ought to be, but the panoply of legislative provisions underlying and supporting claims such as the plaintiff's is potent, as we all know.

It remains to be seen whether Mr Dobson is able to get the assistance he needs to turn the possibility into something that stands in the way of a judgment.  Mr Bell tells the Court that on the best scrutiny he can make of records at short notice the defendant has been allowed credit for relevant things that might have happened since what he called the "claim date", but I find myself in difficulties feeling satisfied that that is the case.

In those circumstances, Mr Dobson should get the adjournment that he wants.  Thanks, gentlemen.

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